Fitness to Practise Committee. Restoration Application Hearing. 20 July Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE

Transcription

1 Fitness to Practise Committee Restoration Application Hearing 20 July 2018 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of Applicant: Munyaradzi Tawanda C Mazarura NMC PIN: 09C0128E Part(s) of the register: Registered Nurse sub part 1 Mental Health nurse April 2009 Area of Registered Address: West Midlands Panel Members: Clive Powell (Chair, Lay member) Rebecca Nowell (Lay member) Catherine Lamb (Registrant member) Legal Assessor: Nigel Ingram Panel Secretary: Anita Abell Nursing and Midwifery Council: Represented by Ben Wild, Case Presenter Mr Mazarura: Present and represented by Frederick Hookway, Counsel Application: Allowed, subject to completion of a return to practice course 1

2 Determination for application to be restored to the register: The panel has considered your application for restoration to the NMC register very carefully. It has decided to allow your application. Our reasons are as follows: This is your first application for restoration to the NMC Register. You were removed from the register following a decision by the Conduct and Competence Committee on 10 May 2012, on the grounds of your conviction. The matters that led to your removal from the register in 2012 were as follows: That you, a registered nurse; 1. On 9th September 2010 at Reading Crown Court pleaded guilty to possession with intent of an identity document relating to another, contrary to section 25 1c) of the Identity Card Act 2006 and was sentenced to six months imprisonment. And in light of the above your fitness to practise is impaired by reason of your conviction. At the hearing you admitted the charge and that your fitness to practise was impaired as a result of your conviction. 2

3 Extract from panel determination May 2012 Determination on impairment: The Panel has considered whether on the basis of the matters found proved Mr Mazarura s fitness to practise is now impaired by reason of his conviction. It has had regard to the submissions from Ms Barton on behalf of the NMC and all the material put before it, including the representations of Mr Mazarura and of his representatives, and the supporting documents and references provided. It has accepted the advice of the Legal Assessor. Ms Barton submitted that the facts underlying the conviction were a breach of fundamental tenets of the nursing profession and that the Registrant s integrity cannot be relied upon. She submitted that his fitness to practise is impaired. In his written representations to the Panel Mr Mazarura admitted that his fitness to practise was impaired. However, the decision on the question of impairment remains a matter for the judgement of the Panel in the light of the whole of the material before it. It has noted Mr Mazarura s admission. Mr Mazarura is not a British national; he came to this country in 2002 on a dependent s visa, as the dependent of his spouse. In that capacity he was entitled to work and did so. In 2006 he began a three year nursing diploma at university and was registered as a nurse in Following the completion of his course he was unable to obtain either a student visa or a work visa and he says that he faced severe hardship and difficulty in supporting his family. He says that he then obtained a visa document to which he was not entitled and used it in connection with obtaining employment as a nurse. Mr Mazarura then worked as a community psychiatric nurse from December 2009 until his arrest in June In reaching its decision the Panel has had regard to all the circumstances of the case. It has taken into account the case law to which it was referred, including the 3

4 case of CHRE v NMC and Grant, and the NMC s Standards of Conduct, Performance and Ethics, the Code. It has had regard to the public interest, including the protection of the public, the maintenance of confidence in the profession and its regulation and the upholding and declaring of proper standards of conduct and behaviour. The Panel s approach to its task was to take account of the proven conviction and then to consider whether in the light of all the material before it, Mr Mazarura s fitness to practise is impaired today. The general principles at the beginning of the Code require that people in your care must be able to trust you and their health and well-being, with their health and well-being, and that to justify that trust you must be open and honest, act with integrity and uphold the reputation of your profession. Those principles continue, you must always act lawfully whether those laws relate to your professional practice, or personal life. Paragraph 49 of the Code under the heading, Act with Integrity, provides, you must adhere to the laws of the country in which you are practising. Paragraph 61 under the heading, Uphold the Reputation of your Profession, requires that, you must uphold the reputation of your profession at all times. The Panel has concluded that Mr Mazarura s conduct breached each of these standards of the Code and the Panel regards each of these breaches as a serious departure from the standards expected of a nurse. The Panel accepts that Mr Mazarura has shown some insight into his behaviour in making a full and early admission on the facts, and admitting impairment. It accepts that his expressions of remorse are genuine. However, the Panel noted that his immigration status remains unresolved and that his employment position and the circumstances of his family, including their finances, remain problematic. The Panel in these circumstances concluded that there remains a risk of repetition of his behaviour. It also had regard to the fact that evidence of remedial action is of less significance in a case of conduct of this sort than it would have been in a case of clinical error. Mr Mazarura has been convicted of knowingly possessing a false document with intent; further his conviction arose out of an effort to obtain nursing 4

5 employment to resolve financial difficulties. There is nothing to suggest that Mr Mazarura is not a competent nurse and the Panel has not found that his practice presents a risk to patients. The Panel has however concluded that his actions bring the profession into disrepute and that they have breached fundamental professional standards. That is, the requirement to be trustworthy, to act in accordance with the law and to act with integrity. The Panel concluded that his conduct demonstrated a lack of integrity and that despite Mr Mazarura s genuine expressions of remorse and his stated insight, public confidence in the profession would be undermined if a finding of impairment were not made in this case. For all the reasons outlined above, the Panel determined that Mr Mazarura s fitness to practise is now impaired by reason of his conviction. Determination on sanction: The Panel first considered taking no action. It concluded that this would be wholly inappropriate given the serious nature of the misconduct. The Panel next considered whether to impose a caution order. The Panel considered thefactors identified in the Indicative Sanctions Guidance. The Panel noted that Mr Mazarura s conduct did not cause harm to patients. It was an isolated crime but a deliberate and serious one. He has shown some insight in making a full and early admission in both the criminal proceedings and in these proceedings, and has admitted impairment. The Panel accepted that his remorse was genuine. It noted the references commenting on Mr Mazarura s good character. While the offence occurred when Mr Mazarura had personal and financial pressures, there was no element of duress in the proper sense of being compelled by a third party to commit the crime. The Panel considers that the offence is serious. It also arose in the context that Mr Mazarura committed the offence in order to obtain a nursing position. 5

6 Having considered all these factors, the Panel is clear that a caution order is not an appropriate or proportionate sanction and would not be adequate to maintain public confidence in the profession and the NMC. The Panel next considered whether to make a conditions of practice order. The Panel bore in mind that the conviction was not related to Mr Mazarura s nursing practice in a clinical sense. It concluded that no appropriate conditions could be formulated which would address the nature of his impairment which the Panel has found. The Panel next considered whether a suspension order was appropriate, or whether a striking off order was necessary. In reaching its decision the Panel had regard to the mitigating factors which were urged on Mr Mazarura s behalf. As it has set out in its decision on impairment, the Panel accepts that he has shown some insight, that his remorse is genuine and that the offence occurred in circumstances where he was motivated by the need to provide for his family. It took note of the references provided, although in the light of the seriousness of his misconduct it attached only limited weight to them. However, the Panel has to bear in mind that Mr Mazarura s conduct was a serious departure of the standards to be expected of a registered nurse. As the Panel found in its decision on impairment, he has shown a lack of integrity, has brought the profession into disrepute and has broken fundamental principles of professional conduct. Dishonesty, other than in exceptional circumstances, is unacceptable in any profession. The Panel has concluded that Mr Mazarura s conduct which led to his conviction is fundamentally incompatible with him remaining on the register. It considers that a suspension order would be insufficient to maintain public confidence in the profession and its regulation, and that public confidence would be undermined if a striking off order was not made. The Panel took account of the financial and professional hardships such an order would cause Mr Mazarura but considered that the public interest outweighed this. In 6

7 all the circumstances the Panel considered that a striking off order was a necessary and proportionate sanction. Accordingly, the Panel determined to direct the registrar to strike Mr Mazarura off the register. Restoration hearing 20 July 2018 This panel has today heard submissions from Mr Wild on behalf of the NMC, and Mr Hookway on your behalf. You gave evidence under oath. You told the panel that in the period prior to your conviction you had applied to the Home Office to regularise your status in the UK. However, your application did not have any time limit. You had paid a lawyer to help you but you found him to be of little help. You were in what you described as a desperate situation with your savings running out and a family to support. You told the panel you were not thinking straight when you decided to use a false identity document to obtain employment. You told the panel that you admitted the offence to the police at the first opportunity. You told the panel of your personal and employment history since you were struck off. You found it very difficult to find any work and so you moved to the West Midlands where living costs were cheaper. You obtained help from a charity who put you in touch with social services. Whilst you were unemployed you worked with the charity on a voluntary basis establishing a gardening club for people with learning disabilities. You eventually found work as a self-employed white goods service engineer. Whilst the job was well-paid you got little job satisfaction. You decided you wished to return 7

8 to health and social care for which you took a substantial pay-cut. You have been working for Ivers Care Services Limited for the past three years including as a support worker in a hospital setting. You normally work five shifts a week. You have recently obtained a new post with Cygnet Healthcare as a bank worker. You have undertaken training but have not started work yet. You told the panel that you have tried to keep your skills and knowledge up to date. You have many friends in health and social care and so have been able to read journals lent to you by them. You have completed some free Open University courses. You have also had workplace training. Your immigration status has now been resolved. You were granted a ten-year residence permit a few years earlier. This permit is reviewed every 30 months. You accepted that you behaviour brought the profession into disrepute. You said that you realised this in 2009/10 but still went ahead with your actions. You said that you are ashamed of your actions and you realise that you will need to rebuild trust. You have made enquiries about a return to practice course at both Coventry and Birmingham Universities. Mr Wild reminded the panel when considering restoration that the test is whether the panel is satisfied that you are a fit and proper person to practice as a nurse, that you are capable of safe and effective practice as a nurse and that public trust and confidence in the profession could be maintained if you were returned to the register. Mr Wild drew attention to three matters: 8

9 You have admitted that even though you knew your actions would bring the profession into disrepute you went ahead You had not provided any documentary evidence of training You had not provided any documentary evidence of your immigration status. Mr Hookway reminded the panel that your clinical skills have never been called into question. The panel in 2012 considered that you had insight. He drew attention to the case of GMC V Chandra 2017 EWHC 2556 Admin. Mr Hookway submitted that your actions in 2009 were a one-off lapse of judgement. He submitted that the panel could find that you were now a fit and proper person capable of safe and effective practice and that in these circumstances you should be restored to the register. The panel heard and accepted the advice of the legal assessor. The legal assessor reminded the panel of the requirements that need to be satisfied and their powers. The Chair asked for specific guidance in relation to your immigration status as the panel had no documentary evidence before it. The legal assessor advised that if this was the only concern of the panel it could impose a condition that you produce the necessary documentation to the NMC within 21 days. Mr Wild and Mr Hookway agreed this was an appropriate course of action. The panel first considered whether you are a fit and proper person to practise as a nurse. It took into account the NMC Guidance on restoration. 9

10 The panel took into account that the substantive panel in 2012 considered that you had demonstrated insight and remorse. You had made admissions as soon as you were able. You engaged with the NMC in You have engaged again today and you were able to explain the reasons behind your actions. Further you have told the panel that you would never repeat those actions. You are otherwise of good character. The panel considered that you have demonstrated insight and sufficient remediation that the panel is satisfied you would not repeat your actions. The panel note that it is six years since you were struck off and you have not made any previous restoration application. You have told the panel of your efforts to keep your skills and knowledge up to date. It noted that your clinical skills have never been called into doubt. The panel is disappointed that you did not provide any documentary evidence to support your oral evidence, such as a list of training courses attended and/or journals read. However it accepts your oral evidence and has attributed the lack of documentary evidence to possible naivety on your part. You have, however, provided a number of positive testimonials from heath care professionals and others, all of whom know about these proceedings. The panel notes in particular your employer of the past three years (Ivers Care service) states: I am confident that if given another chance to serve again as a nurse he will be a great asset to the health field The panel came to the conclusion that you also displayed naivety in relation to the lack of documentary evidence of your immigration status. However, whilst the panel was in private session it received a photocopy of your immigration ID card and the panel is satisfied from that evidence that: You have leave to remain 10

11 You are permitted to work Your status will be reviewed again in July Taking all of the above into account the panel concluded that you would be able to practise safely as a nurse in the future. The panel next considered the public interest and noted that the charge which led to your being struck off related to dishonesty. The panel took into account that you received a six-month prison sentence, that you have been off the register for six years, that is it is over eight years since you committed the offence, that you were of previous good character and there has been no repetition of events. In the circumstances the panel concluded that the passage of time since your conviction was sufficient to satisfy the public interest. The panel therefore considered that the dishonesty matters have been discharged. Further, the panel concluded that it was relevant in this case to consider the public interest in the restoration of a good nurse to the register. The panel has concluded that you are of good health and character such that you are capable of safe and effective practice. The panel has therefore decided to allow your application for restoration. You will be required to complete a return to practice course before you will be able to practise again. 11