Conduct and Competence Committee Substantive Meeting 18 January 2013 Nursing and Midwifery Council, 61 Aldwych, London, WC2B 4AE Name of registrant: NMC Pin: Mr Ezio Branca 05B0165E Part(s) of the register: Registered Nurse sub-part 1 Adult Nursing February 2005 Area of registered address: Type of case: Panel members: Legal Assessor: Panel Secretary: Facts proved: Facts not proved: Fitness to practise: Sanction: Interim Order: England Conviction Hilary Nightingale (Chair lay member) Caroline Tilley (Registrant member) Sally Ruthen (Lay member) Ben Stephenson Vicky Connick The charge n/a Impaired Striking off order Interim suspension order 18 months Details of charge: That you, a registered nurse: 1. On 19 July 2011, at Bournemouth Crown Court, were convicted of putting a person in fear of violence by harassment; 2. With regard to (1) above, on 25 August 2011 were subsequently sentenced to 6 months imprisonment and subject to a restraining order for a period of 5 years. AND, in light of the above, your fitness to practise is impaired by reason of your conviction. Page 1 of 6
Determination on service The panel heard that notice of the meeting had been posted by first class post and recorded delivery on 11 December 2012 to Mr Branca s registered address, and that it contained the appropriate details of the meeting. The panel heard and accepted the advice of the legal assessor. It noted that notice of this meeting had been sent more than 28 days before this meeting, and accordingly that service had been effected in accordance with Rule 11(A) of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004. Background On 1 July 2010, Mr Branca s car was clamped after it was parked by his son. Mr Branca was contacted by his son, who informed him of the clamping of his car. Mr Branca attended the scene, sat in his car, falsely claiming that he had been there all the time and that his disabled badge had been displayed. The Judge in the sentencing transcript stated that this was disproved by a photograph. On 3 July 2010, Mr Branca telephoned the clamping company to enquire whether the call was free. Once he had established that the calls to the clamping company would not incur a charge, he began calling the man who had clamped his car. Mr Branca told him that he was going to get his money back and that he would keep calling every hour, day and night. On 3 July 2010, Mr Branca made 23 calls to the clamper. On 4 July 2010, Mr Brance made 42 calls, including seven at around 04:00 hours. Mr Branca said that he was going to get him. On 5 July 2010, Mr Branca made four calls before the clamper had his number disconnected. Mr Branca conducted an internet search and discovered another number for the clamper. On 6 July 2010, he made 52 calls between 18:00 hours and 20:00 hours. Mr Branca swore at the clamper, told him that he knew where he lived and said that he was going to kill him, his whole family and his children. He told the clamper that his wife was having an affair, that she had Aids, and that he hoped that the clamper and his family would all die of cancer. On 17 August 2010, the clamper had his number reconnected and Mr Branca began calling again, which appears to have been triggered by a Government announcement that it was proposing to ban clamping on private land. The registrant said Ha, ha they re banning you, I am going to get you pinned down and slit your throat He made approximately 100 calls on that day, mostly between 18:00 hours and 21:00 hours, which were mostly silent, but some of which were abusive. Mr Branca threatened to kill the clamper and his family. He verbally abused the clamper s wife when she answered the phone. On 18 August 2010, Mr Branca made nearly 40 calls to the clamper and these only ended when he was arrested, although two silent calls were made thereafter, which the Judge considered were made by probably one of [Mr Branca s] sons. The Certificate of Conviction obtained confirms that Mr Branca appeared on 19 July 2011 at Bournemouth Crown Court and was convicted after trial for putting a person in fear of violence by harassment. He was sentenced to six months imprisonment and a Restraining Order (Protection from Harassment Act 1957 S5) for a period of five years. Page 2 of 6
Determination on facts The panel had sight of Mr Branca s certificate of conviction dated 5 April 2012. Rule 31(2) of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 states that a copy of the certificate of conviction is conclusive proof of the conviction and that the findings of fact upon which the conviction is based is admissible as proof of facts. The panel took into account the advice of the legal assessor and was satisfied that the certificate of conviction provides sufficient evidence of the conviction in this case. The panel therefore finds the facts set out in the charges proved. Determination on impairment The panel considered, on the basis of the matter found proved, whether Mr Branca s fitness to practise is currently impaired by reason of his conviction. The panel had regard to all the evidence before it. The panel heard and accepted the advice of the legal assessor. He referred the panel to the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). The panel has exercised its own judgement in determining this issue. In considering Mr Branca s fitness to practise, the panel reminded itself of its duty to protect patients and its wider duty to protect the public interest which includes the declaring and upholding of proper standards of conduct and behaviour, and the maintenance of public confidence in the profession and the regulatory process. The panel considered that as a registered nurse, Mr Branca has an obligation to adhere to the laws of the country. It had particular regard to the following provisions from the NMC s publication, the code: Standards of conduct, performance and ethics for nurses and midwives (May 2008) (the Code): The preamble Failure to comply with this code may bring your fitness to practise into question and endanger your registration. Be open and honest, act with integrity and uphold the reputation of your profession Standards Be open and honest, act with integrity and uphold the reputation of the profession Uphold the reputation of your profession 61. You must uphold the reputation of your profession at all times. The panel concluded by reason of its findings of fact, that Mr Branca had breached the above standards of the Code. The panel had regard to the Court Transcript from Mr Branca s Sentencing Hearing at Bournemouth Crown Court on 25 August 2011. It noted that Mr Branca repeatedly telephoned the man who had clamped his vehicle on 1 July Page 3 of 6
2010 and had made numerous threats, using the most extreme of abusive language, and had made threats on several occasions to harm the clamper and his family. The panel considered that these circumstances did bring the profession into disrepute. The panel referred to the record of Mr Branca s police interviews on 19 August 2010 and 21 December 2010. It noted that Mr Branca had maintained throughout his interviews that he had made a single telephone call, which was non threatening in nature. The panel further noted that Mr Branca did not display any remorse for his actions until the Sentencing Hearing, where the Judge stated You showed no remorse, you contested the case to the bitter end, and you accused everyone, including the police, of plotting against you. You now in fact accept your guilt and say you are remorseful, but it is a bit late. The panel considered that Mr Branca had demonstrated dishonesty throughout in his denial of his conduct which led to his conviction. It further concluded that he demonstrated no insight throughout the criminal proceedings into his extreme behaviour. The panel considered that, taking into account the nature of Mr Branca s conviction and the conduct which led to it, the need to uphold proper professional standards and public confidence would be undermined if a finding of impairment were not made in the circumstances of this case. For these reasons, the panel determined that Mr Branca s fitness to practise is currently impaired by reason of his conviction. Determination on sanction The panel considered this case very carefully and has decided to make a striking off order. In reaching its decision on sanction, the panel considered all the evidence before it. The panel exercised its own independent judgment on this issue and has heard and accepted the advice of the legal assessor. It has taken into account the NMC Indicative Sanctions Guidance (June 2012) ( ISG ). It had regard to the need to protect the public as well as the wider public interest. The wider public interest includes maintaining public confidence in the profession and the NMC, and declaring and upholding proper standards of conduct and behaviour.it has applied the principle of proportionality, weighing the interests of the public against those of Mr Branca. The panel has approached the question of which sanction, if any, to impose, by considering the least restrictive sanction first and moving upwards. The panel first considered taking no action but concluded that this would be inappropriate in view of the serious nature of Mr Branca s conviction. The panel determined that it would not be proportionate nor in the public interest to take no further action and that public trust and confidence in the profession would not be upheld if this course of action was taken. The panel next considered a caution order. It had careful regard to paragraphs 63 to 65 of the ISG. The panel noted that Mr Branca informed the Court and the NMC in 2011 that he was suffering from health issues. However, the panel reminded itself that Mr Branca s conviction was not in relation to an isolated incident, but to continuous harassment of the clamper and his family, and involved extreme behaviour. It also noted that he was shown no remorse for his actions and was of the view that he had Page 4 of 6
demonstrated dishonesty throughout in his denial of the conduct which led to his conviction. The panel concluded that a caution order was not an appropriate or proportionate sanction, and would not be sufficient to protect members of the public or uphold the reputation of the profession or the NMC as a regulator. The panel next considered the imposition of a conditions of practice order. It noted that Mr Branca s conviction does not directly relate to his work as a registered nurse. It further noted that he informed an NMC case officer in a telephone conversation on 26 November 2012 that he would not be returning his case management form and that he has accepted that he will never practise nursing again. Consequently, the panel did not consider that it would be possible to formulate appropriate, proportionate and workable conditions. The panel additionally reminded itself that Mr Branca s denial of his conduct and concluded that it demonstrated a lack of insight. It did not consider that it would be possible to formulate conditions of practice which would address the attitudinal issues in this case. The panel considered whether to impose a suspension order. The panel referred to the case of Bolton v Law Society [1994] 1 WLR 512, A profession s most valuable asset is its collective reputation and the confidence which that inspired. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price. The panel considered that the serious nature of Mr Branca s conviction resulting in a sentence of imprisonment brought the profession into disrepute. It was of the view that his conduct and behaviour were fundamentally incompatible with continued registration. Accordingly, the panel determined that it would not be proportionate, nor would it satisfy the public interest, to impose a suspension order. The panel concluded that a striking off order is the only sanction which is sufficient to protect the public interest. Public confidence in the professions and the NMC can only be sustained if Mr Branca is removed from the register. The panel considered that this order was necessary to send to the public and the profession a clear message about the standard of behaviour required of a registered nurse. The panel had no specific information before it about the impact, financial or otherwise, such an order would have on Mr Branca, but concluded that, in any event, his interests were outweighed by the public interest in this matter. It considered that a striking off order was the only appropriate and proportionate sanction. Accordingly, the panel determined to direct the Registrar to strike Mr Branca off the register. Mr Branca will be advised that his name will be removed from the NMC register. He may not apply for restoration until five years after the date that this decision takes effect. Anyone who enquires about his registration will be advised of this. Determination on Interim Order: The panel considered whether to impose an interim order. The panel had regard to all the evidence adduced and accepted the advice of the legal assessor. Page 5 of 6
For all the reasons set out in the panel s determination thus far, and in all the circumstances of this case, the panel decided that an interim suspension order was necessary for the protection of the public and was otherwise in the public interest. To do otherwise would be incompatible with the panel s earlier findings. The panel considered that the order should run for a period of 18 months to allow for any appeal process and that such an order was both appropriate and proportionate. If at the end of the appeal period of 28 days, Mr Branca has not lodged an appeal, the interim order will lapse and will be replaced by the substantive order. On the other hand, if he does lodge an appeal, the interim order will continue to run until the conclusion of the appeal. Page 6 of 6