Conduct and Competence Committee Substantive Hearing

Transcription

1 Conduct and Competence Committee Substantive Hearing Friday 9 November Aldwych, London WC2B 4AE Name of Registrant: NMC PIN: Part(s) of the Register: Type of case: Katherine Sims 08H2273E Registered Nurse Sub part 1 Adult Nursing (October 2008) Conviction Panel Members: Maurice Cohen (Chair Lay member) Sylvia Dean (Lay member) Vivienne James (Registrant member) Legal Assessor: Panel Secretary: Charges found proved: Fitness to practise: Sanction: Interim Order: Richard Ferry Bally Dhaliwal Charge 1 proved by way of conviction Impaired Striking-Off order 18 month Interim Suspension Order Service Ms Sims is not present and is not represented. The panel has heard submissions from Mr Weston, on behalf of the Nursing and Midwifery Council (NMC) and has accepted the advice of the Legal Assessor. Notice of the hearing was sent to Ms Sims registered address on 17 September 2012, by first class post and recorded delivery. The Royal Mail Track and Trace system shows that the letter was returned to sender as it was unable to deliver, however it is clear that Ms Sims did receive the Notice as she responded to it. Page 1 of 11

2 The Legal Assessor has advised that the notice of hearing is in compliance with the time limit specified by the Rules and the contents are in compliance with the Rules. The panel is satisfied that the notice of hearing has been served in accordance with Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 as amended. Proceeding in absence The panel next considered whether it would be appropriate to proceed in the absence of Ms Sims. The panel heard submissions from Mr Weston on behalf of the NMC and has accepted the advice of the Legal Assessor. Mr Weston submitted that Ms Sims had indicated in her response to the notice of hearing that she will not be attending the hearing due to child care reasons. He submitted that there is a telephone note from the NMC Case Officer dated 26 October 2012, indicating that contact was attempted to Ms Sims via telephone, however the Case Officer received a message that the number was not recognised. The contact number was provided by Ms Sims on her response to the notice of hearing and also her written statement. Mr Weston contended that Ms Sims is aware of the hearing proceedings today and is happy for the hearing to proceed in her absence. She also stated that she would be available via telephone to answer any questions the panel may have. The panel reminded itself of Rule 21(2)(b) and (2)(c) of the NMC Fitness to Practice Rules 2004, which gives the panel a discretion to hear cases in the absence of the registrant or to adjourn and issue directions. The panel has carefully considered the circumstances of Ms Sims non-attendance and has concluded that she has voluntarily absented herself from these proceedings. The panel is aware that it has discretion whether to proceed in the absence of Ms Sims, but it must balance that discretion with the utmost care and caution. The panel noted that it must balance the interests of Ms Sims against the public interest of proceeding expeditiously in such matters. The panel concluded that it is important that this matter is dealt with in a timely manner in the public interest and for the protection of the public. The panel considered Ms Sims response to the notice of hearing and that she is aware of these proceedings. She has indicated further that she is happy for the hearing to proceed in her absence. The panel also took into account the length of time that has passed since the allegations occurred. The panel noted that Ms Sims has not requested for an adjournment. The NMC has taken steps in order to attempt to accommodate Ms Sims childcare needs, but the panel noted that she has not sought to take up the offer or make any request herself for reasonable adjustments to be made. The panel further concluded that, if it was to adjourn this hearing, there is no evidence before it to cause it to believe that Ms Sims would attend any future hearing. Consequently, the panel has determined that, in all the circumstances, it is in the interests of justice that the hearing should proceed today. Page 2 of 11

3 Charges read as follows: That you, a registered nurse, 1. On 10 September 2010 at Lincoln Magistrates Court pleaded guilty to theft of 10 cash contrary to section 1(1) and 7 of the Theft Act 1968 and were sentenced to a fine of 500 and ordered to pay 10 compensation, 15 victim surcharge and costs of 85 AND in light of the above, your fitness to practise is impaired by reason of your conviction Decision on the findings on facts: The panel was referred to Rule 31 (2) of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 in which it is stated: Where a registrant has been convicted of a criminal offence: (a) a copy of the certificate of conviction, certified by a competent officer of a Court in the United Kingdom (or, in Scotland, an extract conviction) shall be conclusive proof of the conviction; and (b) the findings of fact upon which the conviction is based shall be admissible as proof of those facts. The panel received a copy of the certificate of conviction from Lincoln Magistrates Court, which detailed that Ms Sims was convicted of theft of 10 cash on 7 June 2010, contrary to Section 1(1) and 7 of the Theft Act Accordingly, the panel found the facts proved on the basis of the certificate of conviction. The panel also noted Ms Sims admission to the allegation in her completed Case Management Form dated and signed on 28 September Determination on impairment The panel has had regard to all the documentary evidence placed before it and accepted the advice of the legal assessor. The legal assessor advised the panel to exercise its own independent judgement when reaching its determination. The panel has borne in mind that its primary duty is to consider the public interest, which includes public protection, the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour within the profession. The panel received a written witness statement from Ms Kim Cooper, Matron for Surgical Services at Lincoln County Hospital, part of United Lincolnshire Hospitals Trust Page 3 of 11

4 (the Trust). Ms Cooper carried out the investigation into Ms Sims alleged behaviour and interviewed her on 13 October The panel also received a copy of the Police Witness Statement from the victim of theft, a Police report about the incident; a record of the Police interview with Ms Sims and Ms Sims response to the NMC Notice of Hearing. The panel also received a written statement from Ms Sims dated 9 October The panel carefully considered all the documentary evidence before it and attached such weight to the evidence as it considered appropriate. The panel also noted that Ms Sims submitted two completed NMC Case Management Forms received by the NMC on 15 June 2012 and 28 September 2012 respectively. In the 15 June 2012 response, Ms Sims admitted that her fitness to practise is impaired, however the panel noted in her 28 September 2012 response, she ticked the corresponding box that her fitness to practise is not currently impaired. The panel observed that whatever view Ms Sims took it was a matter for the panel to determine whether her fitness to practise was currently impaired. Background to the case The NMC received a letter of notification from Lincolnshire Police in relation to Ms Sims on 8 October The letter indicated that on 10 September 2010 Ms Sims had been convicted of theft from an elderly gentleman (injured party) and had been fined 500 and ordered to pay 10 compensation, 15 victim surcharge and 85 costs. The incident that gave rise to Ms Sims conviction occurred whilst she was employed by Lincoln County Hospital as a staff nurse on the Medical Day Unit. On 10 September 2010, Ms Sims appeared before Lincoln Magistrates Court and pleaded guilty to theft of 10 and was sentenced as already stated. The facts behind the conviction are that on 7 June 2010 Ms Sims was visiting the home of her friend and colleague s elderly father. Ms Sims had previously visited the elderly gentleman s home on a number of occasions and each time her friend (his daughter) had been present. It was alleged that the elderly gentleman had indicted to his daughter that he had suspected money had gone missing from his wallet and that this only happened after Ms Sims had visited him. Acting on these suspicions the elderly gentleman and his daughter marked two 10 notes by scribbling 3 circles below the Queen s head and placed them back into his wallet for the next time Ms Sims visited him at home. On 7 June 2010, Ms Sims visited the elderly gentleman s home, and immediately after her visit he noted that one of the 10 notes was missing from his wallet. Page 4 of 11

5 His daughter followed Ms Sims and found her leaving an off-license near to her father s home. It is alleged that she confronted Ms Sims and that Ms Sims denied the theft. After the confrontation, the daughter entered the off-licence and the cashier produced a 10 note with 3 circles scribbled below the Queen s head, which the casher had confirmed it had been tendered by Ms Sims. Ms Sims was questioned by the Lincoln police on 17 June 2010, where she denied stealing 10 from the elderly gentleman. However, when she appeared before the Lincoln Magistrates Court on 10 September 2010 she entered a guilty plea and was duly convicted and sentenced. On 13 September 2010 the Lincolnshire Echo, a local newspaper reported that Ms Sims had been convicted of a theft from an 83 year old man. It is alleged that Ms Sims employer, the Lincolnshire County Hospital only became aware of the theft after colleagues were alerted to the press coverage and that Ms Sims did not tell her employer on her own volition. Ms Cooper, investigated the matter on behalf of the Trust and conducted an interview with Ms Sims on 13 October During this interview, Ms Sims admitted that she had appeared in court on 10 September 2010 and that she had pleaded guilty to theft of 10 from an elderly gentleman whom she had been visiting in his home. She stated that she was not aware that the incident had been reported in the Lincolnshire Echo newspaper. Furthermore, she told Ms Cooper that she had informed her line manager of the allegation and that her line manager was aware that the case was being investigated by the Police. The line manager refuted this version of events. In her witness statement, Ms Cooper reported that Ms Sims line manager stated she was not aware of the allegation and subsequent conviction and that she first became aware of it when told by the elderly gentleman s daughter who works at the Hospital. Mr Weston, on behalf of the NMC, referred the panel to the cases of Cohen v GMC [2008] EWHC 581 (Admin); CHRE v Nursing and Midwifery Council and Grant [2011] EWHC 927 (Admin) and Yeong v GMC [2009] EWHC 1923 (Admin). Mr Weston submitted that honesty and acting with integrity are fundamental tenets of the nursing profession and that Ms Sims had breached these. He also referred to the issue of remediation and in particular in the case of Yeong v GMC, which specifically looked at the issue of remediation in cases which did not relate to clinical errors or incompetence. In the case of Yeong, Sales J stated that: Where a FTPP considers that the case is one where the misconduct consists of violating such a fundamental rule of the professional relationship between medical practitioner and patient and thereby undermining public confidence in the medical profession, a finding of impairment of fitness to practise may be justified on the grounds that it is necessary to reaffirm clear standards of professional conduct so as to Page 5 of 11

6 maintain public confidence in the practitioner and in the profession. In such a case, the efforts made by the medical practitioner in question to address his behaviour for the future may carry very much less weight than in a case where the misconduct consists of clinical errors or incompetence. Mr Weston then addressed the panel on whether Ms Sims fitness to practice is currently impaired. He referred the panel to Cohen and Grant. He submitted that dishonesty is difficult to remedy and that therefore there remains a risk of repetition in the future. In her written letter to the NMC, Ms Sims outlined her health matters as mitigating factors; however Mr Weston submitted that there is no evidence before the panel to substantiate her health concerns. He contends that Ms Sims did not make early admissions to theft, to either the daughter of the elderly gentleman nor to the Police in her interview. From the papers, it would appear that the first time that she admitted the theft was at Lincoln Magistrates Court. Furthermore, he submitted that this was not an isolated incident. The elderly gentleman had suspicions that Ms Sims was stealing from him from previous incidents when she had visited and money had gone missing, resulting in him and his daughter setting up the sting to catch the thief. The panel has accepted the advice of the legal assessor who referred the panel to the NMC Code of Conduct ((The Code: Standards of Conduct, Performance and Ethics for Nurse and Midwives of May 2008) and the case of CHRE v NMC and Grant [2011] EWHC 927. The panel concluded that Ms Sims had breached the Code in the following provisions of the Code: Preamble: The people in your care must be able to trust you with their health and wellbeing. To justify that trust, you must: be open and honest, act with integrity and uphold the reputation of your profession. As a professional, you are personally accountable for actions and omissions in your practice, and must always be able to justify your decisions. You must always act lawfully, whether those laws relate to your professional practice or personal life. And paragraphs: 49 You must adhere to the laws of the country in which you are practising. 61 You must uphold the reputation of your profession at all times. Page 6 of 11

7 In reaching its decision, the panel appreciated that breaches of the code do not automatically result in a finding of impairment. However, given the nature of the charge found proved, the panel found that Ms Sims actions fell far short of the standards expected of a registered nurse. The theft of 10 from an elderly and vulnerable gentleman is a clear breach of trust by Ms Sims who had been invited as a guest into his home. Honesty and integrity is a fundamental tenet of the nursing profession and that in order to justify public trust and confidence, and to maintain and enhance the reputation of the profession, registrants are required to act lawfully and with honesty and integrity, both in their professional and in their personal lives. The panel then went on to consider whether Ms Sims fitness to practise is currently impaired by reason of the conviction. In approaching the question of impairment, the panel was assisted by the judgement of Mrs Justice Cox in the case of CHRE v NMC and Grant [2011] EWHC 927. At paragraph 76, she approved the test suggested by Dame Janet Smith in the Fifth Shipman Report, which states: Do our findings of fact in respect of the doctor s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he: a) 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; and/or b) has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or d) has in the past acted dishonestly and/or is liable to act dishonestly in the future. The panel has concluded that Ms Sims actions of theft from a vulnerable and elderly gentleman amounted to a serious violation of trust, which had brought the profession into disrepute and breached a fundamental tenet of the profession. It was a dishonest act. The panel then went on to ask itself whether Ms Sims is liable in the future to bring the profession into disrepute, breach fundamental tenets of the profession or act dishonestly. The panel had careful regard to the issues of insight and remediation. It took particular note of her written statement and her self reported health concerns. The panel noted that Ms Sims did not make early admissions to the allegation. She denied stealing 10 from the elderly gentleman when confronted by his daughter. She further denied it when questioned by the Police. She only admitted it during court Page 7 of 11

8 proceedings. She also failed to notify her employer of her conviction. The panel is satisfied that Ms Sims sought to hide the incident from her employer. Furthermore the panel drew an inference from the elderly gentleman s written statement to the Police that this may not have been an isolated incident. The panel noted in Ms Sims written statement dated 9 October 2012 that she made a very big mistake which has jeopardised this [her nursing career] and that she is truly sorry for what had happened and would like to be able to give something back through my nursing. Furthermore she stated that she was suffering from health concerns at the time of the incident. The panel noted that there is no medical evidence before it to substantiate her health matters. The panel noted that she has expressed regret for her actions, however she has demonstrated little insight. The panel also considered that dishonesty is difficult to remediate. Accordingly, the panel could not be satisfied that Ms Sims will not act in this way in the future. The panel concluded that the need to uphold proper professional standards and public confidence in Ms Sims and in the profession would be undermined if a finding of impairment of fitness to practise were not made in the circumstances of this case. Accordingly, the panel has determined that Ms Sims fitness to practise is currently impaired. Decision and reasons on sanction Having found that Ms Sims fitness to practise is impaired, the panel moved on to consider what sanction, if any, is appropriate and proportionate to impose. In reaching its decision on sanction, the panel has considered all of the evidence. It has accepted the advice of the legal assessor who referred the panel to the case of Parkinson v NMC [2010] EWHC 1898 (Admin) as well as the NMC Indicative Sanctions Guidance. In addition the panel has taken into account the written submissions sent by Ms Sims, together with the reference from her employer. Under Article 29 of the Nursing and Midwifery Council Order 2001, the panel can take the following actions in ascending order: no action; a caution order for one to five years; a conditions of practice order; a suspension order for a maximum of one year or a striking off order. The panel has applied the principles of fairness, reasonableness and proportionality, weighing the public interest with Ms Sims own interests and taking into account any mitigating and aggravating factors in the case. The public interest includes the protection of members of the public including patients, the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour. The panel has taken account of the current Indicative Sanctions Guidance, bearing in mind that the decision on sanction is one for its own independent judgement. Page 8 of 11

9 The panel was mindful of the fact that the purpose of sanction is not intended to be punitive, but rather to protect the relevant interests identified above and in particular the need for public protection. The panel has considered this case carefully and has decided to make a striking-off order. The effect of this order is to remove Ms Sims name from the register. She may not apply for restoration until five years after the date that this decision takes effect. The panel s reasons are as follows: The panel first considered whether it would be sufficient to conclude this case with no further action. The panel determined that the facts of this case are too serious, that it was not in the public interest to take no action and that such a course would be wholly insufficient. The panel next considered whether a caution order would be an appropriate and proportionate order. The panel formed the view that this would not be sufficient, given the nature of the facts found in this case. Ms Sims had stolen from a vulnerable elderly gentleman who was the father of her colleague and friend and the panel is of the view that Ms Sims abused the trust that was expected of her. The panel also formed the view that this was not an isolated incident having drawn the inference that money was taken on previous occasions. This inference was drawn from the evidence of the victim who suspected Ms Sims was stealing from him and who thus, together with his daughter, set a trap to catch her. That trap was successful, suggesting that the victim was right in thinking Ms Sims had taken from him before. Ms Sims has demonstrated limited insight into her criminal behaviour as shown by her initial denial to both her friend and then the police. She failed to notify her employer of the allegation and subsequent conviction and when challenged about that claimed to have told her line manager. This was not true. This attempt to cover up her wrong doing demonstrated a further lack of integrity compounding the initial offence of theft. Ms Sims only showed remorse for her actions when she attended court and thereafter in her written submission to this panel. There is no evidence to suggest that she has taken any steps to remedy her dishonest behaviour and the panel felt that there is a real risk of repetition. The panel went on to consider the imposition of a conditions of practice order. The panel concluded that no conditions could be formulated which would sufficiently address the dishonesty. The misconduct in this case is not lack of competence. Therefore the panel concluded that a Conditions of Practice Order would not be a sufficient or appropriate sanction to address the seriousness of the case or be in the public interest. The panel then carefully considered whether a suspension order would be an appropriate and proportionate sanction in this case. The panel noted that, although dishonesty was not specifically charged it is inherent within the offence of theft. That theft, although not of a significant amount, was from a vulnerable elderly gentleman who no doubt trusted Ms Sims and put store by the fact that she was a nurse and his daughter s colleague. Page 9 of 11

10 The panel was referred to what Mr Justice Mitting had said in the case of Parkinson v NMC [2010] EWHC 1898 (Admin): A nurse found to have acted dishonestly is always going to be at severe risk of having his or her name erased from the register. A nurse who acted dishonestly, who does not appear before a panel whether personally or by solicitors or Counsel to demonstrate remorse, a realisation that the conduct criticised was dishonest, and an undertaking that there will be no repetition, effectively forfeits the small chance of persuading the panel to adopt a lenient or merciful outcome and to suspend for a period rather direct erasure. Mr Weston submitted that in the case of Parkinson, the registrant had not engaged with the NMC proceedings and that the panel should take into account that Ms Sims has engaged with her NMC investigation. Nevertheless, she is not present at the hearing and the above authority remains relevant in these circumstances. The panel reminded itself that her actions involved theft from a vulnerable elderly gentleman who trusted her. The panel in its determination on impairment formed the view this was not an isolated incident and it was repeated behaviour until she was discovered. In her behaviour before during and after the theft, Ms Sims demonstrated attitudinal and behavioural problems and her dishonest action was persistent. The panel concluded that Ms Sims had breached a fundamental tenet of the profession by failing to be open and honest and act with integrity. The panel also determined that Ms Sims has shown limited insight and remorse into her dishonest behaviour and had breached significant sections of the Code. The panel took into account Ms Sims expressions of remorse and regret and the inevitable financial impact its decision would have on her. The panel also noted the health issues raised by Ms Sims and the reasons give for her criminal behaviour. The panel concluded, however, that her conduct was fundamentally incompatible with remaining on the register and that the public interest outweighed her own interest in this instance. It has determined that a suspension order is not proportionate and would not maintain confidence in the professions or indeed declare and uphold the proper standards of conduct and performance. In all the circumstances, for the reasons set out above, the panel has determined that a striking-off order is the only sufficient and proportionate sanction to mark the gravity of this case, to protect the public and to maintain public confidence in the profession and the regulatory process. Ms Sims will be notified of the panel s decision in writing. The Striking Off order will come into effect 28 days after the service of the notification of the panel s decision upon Ms Sims. If Ms Sims appeals the panel s decision the order will not take effect until the appeal has been concluded. Page 10 of 11

11 Decision and reasons for interim order The panel has carefully considered the imposition of an interim order. The panel has taken into consideration submissions from Mr Weston, on behalf of the NMC and accepted the legal assessor s advice. In all the circumstances of this case, the panel has concluded that an Interim Suspension Order is proportionate and is necessary for the maintenance of public confidence in the profession and the NMC and the declaring and upholding of proper standards of conduct. In coming to this conclusion the panel took into account the seriousness of the misconduct and the lack of assurance that it would not be repeated. Having determined that Ms Sims behaviour was fundamentally incompatible with being on the register the panel considered that it would not be appropriate to allow her to practice in the interim if an appeal was lodged. It considers that the order should run for a period of 18 months in order to allow for any appeal. The panel therefore imposes an interim suspension order for a period of 18 months in accordance with its powers under Article 31 of the 2001 order. If at the end of the appeal period of twenty eight days, Ms Sims has not lodged an appeal, the interim order will lapse and be replaced by the final order. If however, the registrant does lodge an appeal the interim order will continue to run for the period imposed or until the appeal is decided. Page 11 of 11