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

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Order Review Hearing 15 February 2019 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of registrant: NMC PIN: Sahr Changhati Kamanda 00I0634E Part(s) of the register: Registered Nurse Sub-part 1 Adult Nursing October 2004 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Nursing and Midwifery Council: Mr Kamanda: Order being reviewed: England Misconduct Julia Whiting (Chair, Registrant member) Carolyn Jenkinson (Registrant member) Rebecca Nowell (Lay member) Gillian Hawken Roshani Wanigasinghe Represented by Matthew Cassells, Case Presenter Not present and not represented Suspension Order (4 months) Outcome: Suspension order extended for a further 2 months and 12 days in accordance with Article 30(2) 1

2 Service of Notice of Hearing The panel was informed at the start of this hearing that Mr Kamanda was not in attendance, nor was he represented in his absence. The panel was informed that the notice of this hearing was sent to Mr Kamanda on 16 January 2019 by recorded delivery and first class post to his registered address. Royal Mail Track and Trace documentation confirmed that the notice of this hearing was collected and signed for by KAMANDA on 21 January The panel accepted the advice of the legal assessor. In the light of the information available the panel was satisfied that notice had been served in accordance with Rules 11 and 34 of The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended February 2012) (the Rules). Proceeding in absence: The panel then considered proceeding in the absence of Mr Kamanda. The panel was mindful that the discretion to proceed in absence is one which must be exercised with the utmost care and caution. Mr Cassells applied for the hearing to proceed in the absence of Mr Kamanda. He referred to the contents of the dated 8 February 2019 from Mr Kamanda, in which he stated: 1. Thus, I accept the panel in preceding in my absence for health reasons evidently indicated and fear from my experience, that facing the NMC panel again and in any form will haston or shorten my life. 2. Thus the evidence deduced is my submission in concluding this matter... 2

3 In reaching its decision the panel considered all of the information before it, together with the submissions made by Mr Cassells. It accepted the advice of the legal assessor. The panel was satisfied that Mr Kamanda was aware of today s hearing and had made the decision not to attend. Mr Kamanda had not requested an adjournment of today s review hearing and there was no reason to believe that an adjournment would result in his attendance in the future. The panel also noted that the NMC had offered Mr Kamanda the opportunity to participate in this review by video link but Mr Kamanda had declined. The panel further noted that this was an early review hearing, scheduled at Mr Kamanda s request. Having weighed the interests of Mr Kamanda with those of the NMC and the public interest in an expeditious disposal of this hearing, the panel determined to proceed in his absence. Decision and reasons on review of the current order: This is an early review requested by Mr Kamanda. The basis for his request is that his previous representative had not provided Mr Kamanda s submissions to the NMC in time for their consideration at the last review meeting. The panel decided to extend the current suspension order for a period of 2 months and 12 days, in accordance with Article 30 (2) of the Nursing and Midwifery Order 2001 (as amended) (the Order). This is the second review of a suspension order originally imposed by a panel of the Fitness to Practise Committee on 30 January 2018 for 9 months. It was first reviewed on 6 November 2018 when that panel imposed a further suspension order for a period of 4 months. The current order is due to expire at the end of 2 April The panel is reviewing the order pursuant to Article 30(2) of the Order. The charges found proved and by way of admission which resulted in the imposition of the substantive order were as follows: 3

4 That you, a registered nurse: 1. On 14 February 2007 were convicted at City of Westminster Magistrates Court of: 1.1 Being an unlicensed person (Taxi tout) soliciting persons for hire car services, contrary to section 167 of the Criminal Justice and Public Order Act 1994; [proved by admission] 1.2 Using a vehicle while uninsured, contrary to section 143(2) of the Road Traffic Act 1988; [proved by admission] 2. Incorrectly did not answer yes when asked to declare to the NMC whether you had been convicted on your NOP forms dated: September 2007; [proved by admission] September 2010; [proved by admission] September 2013; [proved by admission] 3. Were dishonest in your conduct at charge 2 in that you knew that you had been convicted, as set out at charge 1, and intended to conceal your conviction from the NMC; [proved] 4. Did not declare that you had been convicted, as set out at charge 1.1, on your application form to the Royal Free London NHS Foundation Trust ( the Trust ); [proved by admission] Between 3 April and 8 April 2014 did not declare to the Trust that you had been arrested; [proved by admission] 4

5 7. Were dishonest in your conduct at charge 6 in that you knew that you had been arrested and intended to conceal that from the Trust; [proved] AND in light of the above, your fitness to practise is impaired by reason of your conviction in relation to charge 1 and your misconduct in relation to charges 2-7. The first reviewing panel determined the following with regard to impairment: 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 all of the 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. The panel considered whether Mr Kamanda s fitness to practise remains impaired. The panel noted that, despite this meeting being postponed in order that Mr Kamanda could provide submissions, no submissions have been provided by him. In addition, none of the recommendations provided by the substantive panel for a future reviewing panel, have been adhered to. The panel noted that it had no new information before it, despite around nine months elapsing since the substantive hearing. The panel therefore determined that the areas of concern identified by the substantive panel had not yet been addressed and in light of this, the panel concluded that Mr Kamanda remained 5

6 liable to repeat his behaviour. Given the nature of the misconduct a finding of continuing impairment on public interest grounds is also required. The first reviewing panel determined the following with regard to sanction: Having determined that Mr Kamanda 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 of the Order. The panel has also taken into account the NMC s Sanctions Guidance (SG). The panel first considered whether to take no action but concluded that this would be wholly 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 then considered whether to impose a caution order but concluded that this would be also 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 impose a caution order. The panel next considered whether placing conditions of practice on Mr Kamanda s registration would be a sufficient and appropriate response. The panel was mindful that any conditions imposed must be proportionate, measurable and workable. The panel took into account the SG, in particular whether it was possible to formulate conditions and to make provision as to how conditions would be monitored. The panel was of the view that there are no practical or workable conditions that could be formulated, given the nature of the charges in this case. The misconduct identified in this case centres on dishonesty which is not something that can be sufficiently addressed by conditions of practice. Furthermore the panel concluded that the placing of conditions on Mr Kamanda s registration 6

7 would not adequately address the seriousness of this case and would not protect the public. The panel next considered imposing a suspension order and whether such an order would protect the public and meet the public interest considerations of this case. Given Mr Kamanda s disengagement, the panel was not in possession of evidence that had undertaken remedial steps such as training or self-reflection as more fully recommended by the previous panel. This panel had regard to the relevant passages of the SG relative to dishonesty and suspension. The panel considered the SG in relation to dishonesty. The dishonesty found proved involved two separate failures to disclose important information to relevant organisations in two separate sets of circumstances. In respect of dishonest concealment of convictions, this resulted in personal financial gain from a breach of trust and was premeditated, systematic and longstanding deception. This, in the panel s view, placed that dishonesty, for that charge, at a higher level of seriousness. However, in respect of Mr Kamanda s dishonest concealment of his arrest from the Trust, the panel considered that this was spontaneous conduct arising from matters in his personal life, placing it at a lower level of seriousness. The panel had regard to that part of SG which addresses issues of suspension. The panel determined that, although this was not a single instance of misconduct and there had been a clear breach of fundamental tenets of the profession, the misconduct was not fundamentally incompatible with remaining on the register for the following reasons. Whilst the panel had already observed that Mr Kamanda s dishonesty in respect of the non-disclosure of his convictions was at the higher level of dishonesty, given the evidence before it, it was not satisfied that there was evidence of a harmful deep-seated personality or attitudinal problems, particularly because there was no evidence of repetition of this behaviour since

8 Mr Kamanda had displayed some insight to the previous panel albeit it was deemed to be incomplete. Considering proportionality and carefully considering the need to protect the public and uphold the wider public interest, the panel was of the view that a period of suspension would protect the public. This period will also afford an opportunity for Mr Kamanda to fully remediate his misconduct. A suspension order would protect the public whilst it is in force and will be reviewed before its expiry. In accordance with the SG the panel next considered whether or not it should impose a striking-off order. It noted that a number of the listed factors were engaged. There had been a serious departure from the standards expected of a registered nurse; an abuse of a position of trust together with a finding of dishonesty. The panel was, however, not satisfied that striking-off was the only sanction that would protect the public interest. This was a finely balance decision, however having taken into account the issue of proportionality the panel was satisfied that a short period of suspension was the appropriate sanction. It would afford Mr Kamanda one further opportunity to remediate. At the end of the period of suspension, another panel will review the order. At the review Hearing, the panel may revoke the order, or it may confirm the order, or it may replace the order with another order. This could include a striking-off order. Evidence of further non-engagement at that stage may be regarded as a factor tipping the balance against Mr Kamanda remaining on the register. Decision on current fitness to practise: This panel has considered carefully whether Mr Kamanda 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 8

9 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 has had regard to all of the documentation before it. It has taken account of the submissions made by Mr Cassells, and of Mr Kamanda s lengthy written submissions contained within his bundle of documents which included a written reflective piece, training certificates and some references. Mr Cassells outlined the background of this case to the panel. Mr Cassells submitted that Mr Kamanda s attempts to fulfil the recommendations set by the previous reviewing panel have been minimal. He reminded this panel of those recommendations: an up to date written reflective piece from Mr Kamanda showing insight into how his actions departed from the NMC Code of Professional Standards of Practise and behaviour for Nurses and Midwives (2015). Specifically addressing promote professionalism and trust. up to date references from any paid or unpaid work irrespective of who the employer is; and Mr Kamanda s continued engagement with any review whether by personal attendance or by supplying written submissions. Mr Cassells referred the panel to multiple sections of Mr Kamanda s bundle. He submitted that, whilst Mr Kamanda apologises for his actions on the one hand, on the other he attempts to minimise his culpability at length. On the face of it, Mr Kamanda has been unable to meet the clear recommendations set out by the previous reviewing panel to any meaningful degree. Mr Cassells submitted that, of primary concern, is Mr Kamanda s reflective piece which only seeks to shift blame to others. He submitted that the reflective piece does not address any of the concerns of how he departed from the NMC Code and thus the risk of repetition of the misconduct is high. In light of Mr Kamanda failing to show any insight into his dishonest conduct, Mr Cassells submitted 9

10 that a risk of repetition remains and that Mr Kamanda s fitness to practise remains clearly impaired on both public protection and public interest grounds. Mr Kamanda continues to pose a risk to the public and to public confidence if he were to be allowed to practise without restriction. Mr Cassells noted that Mr Kamanda has completed IT and Phlebotomy training in 2018, in addition to the Master of Science in Public Health and Wellbeing achieved in He has not, however, undertaken any training with regard to the concerns raised by the original panel. Mr Cassells further took the panel to an updated reference dated 2 November 2018 from a consultant at the Royal Free Hospital which states; I do not feel that I have sufficient information about his conduct to provide a useful reference at this point. Mr Cassells also invited the panel to give no weight to the other references submitted by Mr Kamanda as they are outdated and from In the absence of any evidence of meaningful insight or remediation on Mr Kamanda s part, Mr Cassells invited the panel to find that Mr Kamanda s fitness to practise remains impaired. He drew the panel s attention to the reasoning around sanction provided by the first reviewing panel, in particular, their reasoning around deliberating between a suspension order and a striking off order. The panel heard and accepted the advice of the legal assessor. The panel exercised its independent judgement and applied the principles of fairness, reasonableness and proportionality, and weighed the public interest against Mr Kamanda s interests. The panel reminded itself that the public interest includes protection of members of the public including patients, the maintenance of public confidence in the profession and its regulator and the declaring and upholding of proper standards of conduct and performance. 10

11 The panel considered whether Mr Kamanda s fitness to practise remains impaired. A key question for the panel s consideration today was what has changed since the finding of impairment in January 2018 and again in November Regarding Mr Kamanda s level of insight, the panel noted that the last panel had no evidence before it of remediation or insight. This panel considered that Mr Kamanda had provided some evidence of emerging insight into his misconduct, albeit limited. The panel was particularly concerned, however, about the poor quality of Mr Kamanda s reflective piece which lacked insight into his misconduct and, in the panel s view, was predominantly made up of a narrative around Mr Kamanda s perceptions and feelings towards the Royal College of Nursing (RCN), the Police, his previous employer, the NMC and the Fitness to Practise panels, and his family members. The panel took note of the further training courses undertaken by Mr Kamanda but considered that this training was not relevant to the misconduct found proved in this case. The panel further took into account that Mr Kamanda is currently working as an Uber driver and that he has been unable to acquire a relevant reference from this paid work. In light of all the information before it, the panel determined that there remains a risk of repetition of the misconduct in this case and that Mr Kamanda remains impaired on both public protection and public interest grounds. Determination on sanction: Having determined that Mr Kamanda s fitness to practise is 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 of the Order. The panel has also taken into account the NMC s Sanctions Guidance (SG). The panel first considered whether to take no action but concluded that this would be wholly inappropriate in view of the risk of repetition identified and the dishonesty in this 11

12 case. The panel decided that it would be neither proportionate nor in the public interest to take no further action. The panel then considered whether to impose a caution order but concluded that this would be also inappropriate in view of the risk of repetition identified and the dishonesty in this case. The panel decided that it would be neither proportionate nor in the public interest to impose a caution order. The panel next considered whether placing conditions of practice on Mr Kamanda s registration would be a sufficient and appropriate response. The panel was of the view that there are no practical or workable conditions that could be formulated, given the nature of the misconduct in this case. The misconduct identified in this case centres on dishonesty which is not something that can be sufficiently addressed by conditions of practice. The panel next considered the imposition of a further period of suspension. Mr Kamanda has been subject to two suspension orders totalling 13 months and has not fully complied with the recommendations of the previous panels. The panel therefore considered whether a further suspension order would serve any useful purpose. The panel took into account Mr Kamanda s stated intention of his commitment to the nursing profession and the evidenced additional training he has undertaken whilst suspended. It balanced this with what it considered to be a poor level of insight into his failings, as evidenced in his reflective piece. After very careful consideration, the panel concluded that a further four month suspension order should allow Mr Kamanda to fully reflect on his misconduct and the implications of his dishonesty and further develop his insight. The panel considered that Mr Kamanda s apparent lack of insight could be incompatible with ongoing registration. It carefully considered both sections in the SG dealing with suspension orders and striking off orders. It noted that the reference to deep-seated attitudinal issues could be relevant in this case but, for the reasons already set out, the panel was not satisfied that the threshold for imposing a striking-off order had yet been 12

13 reached, although the matter was very finely balanced. The panel was of the view that a striking-off order would be disproportionate at this time and was not necessary to protect the public or serve the wider public interest. Having taken into account the issue of proportionality, the panel was satisfied that a further short period of suspension was the appropriate sanction. It would afford Mr Kamanda a further opportunity to reflect fully and demonstrate remediation. At the end of the period of suspension, another panel will review the order. At the review hearing, the panel may revoke the order, or it may confirm the order, or it may replace the order with another order. This could include a striking-off order. Any future panel may be assisted by evidence of: an up to date written reflective piece from Mr Kamanda demonstrating his insight and understanding into the importance of honesty and integrity in the nursing profession and the impact of his dishonest conduct, particularly upon the wider public confidence in the nursing profession; up to date references from any paid or unpaid work, education provider or character reference with regard to Mr Kamanda s honesty and integrity; Mr Kamanda s continued engagement at the next review whether by personal attendance or by supplying written submissions. In accordance with Article 30 (2) of the Nursing and Midwifery Order this suspension order will be extended for a further 2 months and 12 days. This decision will be confirmed to Mr Kamanda in writing. That concludes this determination. 13