Conduct and Competence Committee Substantive Hearing 17 March 2017 Nursing and Midwifery Council, Temple Court 13a Cathedral Road, Cardiff, CF11 9HA

Transcription

1 Conduct and Competence Committee Substantive Hearing 17 March 2017 Nursing and Midwifery Council, Temple Court 13a Cathedral Road, Cardiff, CF11 9HA Name of Registrant Nurse: Kate Matthew NMC PIN: 09B0158W Part(s) of the register: Registered Nurse - Sub Part 1 RNA: Adult - 28 February 2009 Specialist Community Public Health Nurse RHV: Health Visitor - 23 April 2014 V100: Community Practitioner Nurse Prescriber - 23 April 2014 V300: Nurse Independent/Supplementary Prescriber - 4 July 2015 Area of Registered Address: Wales Type of Case: Conviction Panel Members: Monica French (Chair Lay member) Diane Corderoy (Registrant member) Corinna Kershaw (Lay member) Legal Assessor: Richard Tyson Panel Secretary: Rob James Registrant: In attendance and represented by Christian Howells, counsel, instructed by the Royal College of Nursing (RCN) Nursing and Midwifery Council: Represented by Bryony Dongray, counsel, NMC Regulatory Legal Team. Facts proved: 1 Facts proved by admission: 1 Facts not proved: Nil 1

2 Fitness to practise: Sanction: Interim Order: Impaired Striking off order Interim suspension order (18 months) 2

3 Details of charge: That you, as a Registered Nurse: 1. Were convicted of six counts of Fraud contrary to section 1 of the Fraud Act 2006 on 30 August 2016 at Cardiff Crown Court; And, in light of the above, your fitness to practise is impaired by reason of your conviction. 3

4 Decision on the findings on facts and reasons Having been provided with a copy of the certificate of conviction, the panel finds that the facts are found proved in accordance with Rule 31 (2) which states: 31 (2) 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. Background At the time of the offence for which you were convicted, you were employed as a Health Visitor by Aneurin Bevan Health Board. You were also self- employed as an aesthetic nurse running your own business offering skin care. As part of your business, you had arrangements with two doctors to prescribe prescription only medication. Each of your clients would require a face to face consultation with the doctor before any prescription could be written. In November 2013, one of the doctors saw your patients and five prescriptions were administered. Further four prescriptions for the same patients were administered a few months later. Your business agreement with the doctor concerned then came to an end. 4

5 In June 2015, the same doctor received a letter from a private pharmacy, Medfx, enquiring about the hard copy of a prescription they had not received. The doctor contacted the pharmacy as she did not recognise the prescription and the pharmacy explained that the prescription related to products dispensed to you. The doctor explained to the pharmacy that she had not prescribed on your behalf for some 18 months. As a result of the discrepancy in relation to the prescriptions, an investigation commenced and the matter was referred to the police. You were subsequently charged with six counts of fraud relating to falsification of prescriptions by you occurring between 26 September 2014 and 17 June The matter was set down for a trial at the Crown Court and you pleaded guilty to each count on the indictment six weeks before trial. You were sentenced to 32 weeks imprisonment suspended for 18 months with a 200 hours unpaid work requirement. 5

6 Submission on impairment: Having announced its finding on all the facts, the panel then moved on to consider, whether your fitness to practise is currently impaired. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. You gave evidence at this stage. You explained that when you were first questioned by the police regarding your actions you were in panic and denial. You told the panel that your head was all over the place and you did not want to admit to your actions due to the shame. You said that it took you a long time to come to terms with what you had done and that, while you did not initially, you now realise the impact that your actions had on the profession. You told the panel that you now understand that by acting fraudulently you had misused the nurse s Code of Conduct and had deceived those in your care which goes against the honesty and integrity which is what is expected of a Registered Nurse. You said if you had had any concerns at the time you would not have done what you did and that you did not realise that you were putting your patients at risk. You said that you now accept how serious the actions that you took were. While you previously saw what you did as cutting corners, you now understand that it was much more serious than that. You explained that you resigned from your Health Visiting role at Aneurin Bevan Health Board. You said that you have not looked into it but didn t think that the Board would take you back due to your conviction. You stated that you were currently working for a care company providing training and staff support. Ms Dongray referred to the issue of impairment, and addressed the panel on the need to have regard to protecting the public and the wider public interest. This included the need to declare and maintain proper standards and maintain public confidence in the 6

7 profession and in the NMC as a regulatory body. Ms Dongray referred the panel to the cases of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) and Cohen v GMC [2008] EWHC 581 (Admin) Mr Howells, on your behalf, made no submissions but had informed the panel at the outset of the hearing that you admitted that your fitness to practise was impaired. The panel has accepted the advice of the legal assessor which included reference to a number of judgments which are relevant. 7

8 Decision on impairment The panel next went on to decide if as a result of your conviction, your fitness to practise is currently impaired. Nurses occupy a position of privilege and trust in society and are expected at all times to be professional and to maintain professional boundaries. Patients and their families must be able to trust nurses with their lives and the lives of their loved ones. To justify that trust, nurses must be honest and open and act with integrity. They must make sure that their conduct at all times justifies both their patients and the public s trust in the profession. In this regard the panel considered the judgement of Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision, in paragraph 74 she said: In determining whether a practitioner s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances. Mrs Justice Cox went on to say in Paragraph 76: I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph she identified the following as an appropriate test for 8

9 panels considering impairment of a doctor s fitness to practise, but in my view the test would be equally applicable to other practitioners governed by different regulatory schemes. 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 finds that your actions engaged each of the elements of the Grant judgment. Your actions put patients at unwarranted risk of harm in that you were not qualified to prescribe the medication you did. Due to the fraudulent nature of these actions, you brought the nursing profession into disrepute. Further, these actions breached a fundamental tenet of the nursing profession and involved dishonesty, which was denied until only six weeks prior to the hearing of your trial. As to the future, in light of all the oral and written evidence adduced, the panel determined that it was unlikely that you would bring the profession into disrepute, breach a fundamental tenet or commit further dishonesty. Regarding insight, the panel considered that, while you have made a good start in terms of understanding the impact of your actions on the nursing profession, your insight 9

10 requires some further development, particularly as to why your fraudulent behaviour impacts on the public and the profession. The panel considered that you were unlikely to repeat your dishonest behaviour and that in all the circumstances; you are not currently impaired on the grounds of public protection. The panel bore in mind that the overarching objectives of the NMC are to protect, promote and maintain the health safety and well-being of the public and patients, and to uphold/protect the wider public interest, which includes promoting and maintaining public confidence in the nursing and midwifery professions and upholding the proper professional standards for members of those professions. The panel determined that, in this case, a finding of impairment on public interest grounds was required. A member of public would be concerned to hear that a Registered Nurse s fitness to practise had not been found impaired following a conviction which led to a custodial sentence as severe as yours. The panel further determined that this conviction, relating as it did to your work as a Registered Nurse, undermined proper professional standards. Having regard to all of the above, the panel was satisfied that your fitness to practise is currently impaired. 10

11 Determination on sanction: The panel has considered this case very carefully and has decided to make a strikingoff order. It directs the registrar to strike you off the register. The effect of this order is that the NMC register will show that you been struck-off the register. In reaching this decision, the panel has had regard to all the evidence that has been adduced in this case. The panel accepted the advice of the legal assessor. The panel has borne in mind that any sanction imposed must be appropriate and proportionate and, although not intended to be punitive in its effect, may have such consequences. The panel had careful regard to the Indicative Sanctions Guidance ( ISG ) published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. The panel considered the following to be aggravating features: The creation of false prescriptions was persistent and occurred over a nine month period; Your actions involved dishonesty in your role as a Registered Nurse; You delayed acceptance of full responsibility. The panel considered the following to be mitigating features: You were suffering from personal issues and a health condition at the time of the offence; You put forward a guilty plea at the trial, albeit only six weeks prior to it; You are of previous good character; You have shown developing insight and have shown some remorse; There are no other concerns with your practice; You have engaged with the NMC. 11

12 The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of the case. The panel decided that it would be neither proportionate nor in the public interest to take no further action. Next, in considering whether a caution order would be appropriate in the circumstances, the panel took into account the ISG, which states that a caution order may be appropriate where the case is at the lower end of the spectrum of impaired fitness to practise and the panel wishes to mark that the behaviour was unacceptable and must not happen again. The panel considered that your misconduct was not at the lower end of the spectrum and that a caution order would be inappropriate in view of the 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 your registration would be a sufficient and appropriate response. The panel is mindful that any conditions imposed must be proportionate, measurable and workable. The panel took into account the ISG, in particular: 64.8 It is possible to formulate conditions and to make provision as to how conditions will be monitored. The panel is of the view that there are no practical or workable conditions that could be formulated, given the dishonesty in this case. Such dishonesty is not something that can be addressed through retraining. Furthermore the panel concluded that the placing of conditions on your registration would not adequately address the seriousness of this case. The panel then went on to consider whether a suspension order would be an appropriate sanction. Paragraph 68 of the ISG indicates that a suspension order would be appropriate where (but not limited to): 12

13 68 This sanction may be appropriate where the misconduct is not fundamentally incompatible with continuing to be a registered nurse or midwife in that the public interest can be satisfied by a less severe outcome than permanent removal from the register. This is more likely to be the case when some or all of the following factors are apparent (this list is not exhaustive): 68.1 A single instance of misconduct but where a lesser sanction is not sufficient No evidence of harmful deep-seated personality or attitudinal problems No evidence of repetition of behaviour since the incident The panel is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour. The panel considered that this was not a single incident of misconduct but was persistent dishonesty over a significant period. Further, the panel considered that there was some evidence that may have had attitudinal problems as shown by the misleading answers you gave to the police at interview. The panel accepted that there has been no evidence of repetition of your behaviour since the incident, but is only satisfied that you have developing insight into these matters. The conduct, as highlighted by the facts found proved, was a very significant departure from the standards expected of a registered nurse. The panel considered that the serious breach of the fundamental tenets of the profession evidenced by your actions, that led to your conviction, is fundamentally incompatible with your remaining on the register. 13

14 In this particular case, the panel determined that a suspension order would not be a sufficient, appropriate or proportionate sanction. The actions that led to your conviction relate to six different occasions of false prescribing which was only admitted a short time before the case was heard in Court. Balancing all of these factors, the panel has determined that a suspension order would not be an appropriate or proportionate sanction. Finally, in looking at a striking-off order, the panel took note of the following paragraphs of the ISG: 71.1 Is striking-off the only sanction which will be sufficient to protect the public interest? 71.2 Is the seriousness of the case incompatible with ongoing registration (see paragraph 66 above for the factors to take into account when considering seriousness)? 71.3 Can public confidence in the professions and the NMC be sustained if the nurse or midwife is not removed from the register? 72 This sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a registered professional, which may involve any of the following (this list is not exhaustive): 72.1 Serious departure from the relevant professional standards as set out in key standards, guidance and advice including (but not limited to): The code: Standards of conduct, performance and ethics for nurses and midwives 14

15 Your actions were a significant departure from the standards expected of a registered nurse, and are fundamentally incompatible with you remaining on the register. The panel was of the view that the facts behind the conviction in this particular case demonstrate that your actions were serious and to allow you to continue practising would undermine public confidence in the profession and in the NMC as a regulatory body. The panel determined that your actions, which involved fraudulently prescribing medication on six different occasions, are examples of a Registered Nurse acting outside of all of the fundamental principles of her profession and considered that others in the same role would be concerned to hear you would be allowed to remain on the register especially after receiving a custodial sentence. Balancing all of these factors and after taking into account all the evidence before it during this case, the panel determined that the appropriate and proportionate sanction is that of a striking-off order. Having regard to the matters it identified, in particular the effect of your actions in bringing the profession into disrepute by adversely affecting the public s view of how a registered nurse should conduct herself, the panel has concluded that nothing short of this would be sufficient in this case. The panel considered that this order was necessary to mark the importance of maintaining public confidence in the profession, and to send to the public and the profession a clear message about the standard of behaviour required of a registered nurse. 15

16 Determination on Interim Order The panel has considered the application made by Ms Dongray that an interim suspension order should be made on the grounds that it is necessary for the protection of the public and is otherwise in the public interest. Mr Howells made no submissions on the application. The panel accepted the advice of the legal assessor. The panel was satisfied that an interim suspension order is necessary for the protection of the public and is otherwise in the public interest. The panel had regard to the seriousness of the facts behind the conviction and the reasons set out in its decision for the substantive order in reaching the decision to impose an interim order. To do otherwise would be incompatible with its earlier findings. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined. If no appeal is made, then the interim order will be replaced by the striking-off order 28 days after you are sent the decision of this hearing in writing. That concludes this determination. 16