Nursing and Midwifery Council: Fitness to Practise Committee Substantive Hearing

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 1 August 2017 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of registrant: NMC PIN: Tawanda Lovejoy Chivima 10F1833E Part(s) of the register: RNMH, Registered Nurse sub part 1 Mental Health (October 2010) Area of registered address: Type of case: Panel members: Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: England Conviction Trevor Spires (Chair, Lay member) Elaine Hurry (Registrant member) Carolyn Tetlow (Lay member) Adrienne Morgan Ayesha Patel Mr Chivima not present and unrepresented in his absence Represented by Louise Hartley, counsel, instructed by the Nursing & Midwifery Council (NMC) Regulatory Legal Team Consensual Panel Determination: Accepted with amendment Facts proved: 1 Facts not proved: N/A Fitness to practise: Impaired Sanction: Suspension order 12 months Interim order: Interim suspension order 18 months 1

2 Decision on service of Notice of Hearing: The panel was informed at the start of this hearing that Mr Chivima was not in attendance and that written notice of this hearing had been sent to his registered address by recorded delivery and by first class post on 30 June Notice of this hearing was delivered to Mr Chivima s registered address on 1 July 2017, and signed for in the name of Chivima. Further, the panel noted that notice of this hearing was also sent to Mr Chivima s representative at the Royal College of Nursing (RCN) on 30 June The panel took into account that the notice letter provided details of the allegation, the time, date and venue of the hearing and, amongst other things, information about Mr Chivima s right to attend, be represented and call evidence, as well as the panel s power to proceed in his absence. Ms Hartley submitted that the NMC had complied with the requirements of Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the Rules ). The panel accepted the advice of the legal assessor. In the light of all of the information available, the panel was satisfied that Mr Chivima has been served with notice of this hearing in accordance with the requirements of Rules 11 and 34. It noted that the rules do not require delivery and that it is the responsibility of any registrant to maintain an effective and up-to-date registered address. Decision on proceeding in the absence of Mr Chivima: Ms Hartley invited the panel to continue in the absence of Mr Chivima on the basis that he had voluntarily absented himself. Ms Hartley submitted that this was a Consensual Panel Determination (CPD) hearing. She drew the panel s attention to paragraph 1 of the CPD provisional agreement which stated: 2

3 Proceeding in Absence 1. The Registrant and his representative, the Royal College of Nursing ( the RCN ), are aware of the CPD hearing on 1 August The Registrant will not be attending the hearing and is content for it to proceed in his and his representative s absence. The RCN will endeavour to be available by telephone should clarification on any point be required. The parties agree that it is their interests and in the public interest for this agreement to be considered at the hearing on 1 August 2017 as scheduled. Ms Hartley submitted that it is in the interests of justice and the public interest in the expeditious disposal of the case to proceed in Mr Chivima s absence. The panel accepted the advice of the legal assessor. The panel noted that its discretionary power to proceed in the absence of a registrant under the provisions of Rule 21 is not absolute and is one that should be exercised with the utmost care and caution as referred to in the cases of R v Jones [2002] UKHL 5; [2003] 1 AC 1 and GMC v Adeogba [2016] EWCA Civ 162. The panel has decided to proceed in the absence of Mr Chivima. In reaching this decision, the panel has considered the submissions of the case presenter, and the advice of the legal assessor. It has had regard to the overall interests of justice and fairness to all parties. It noted that: no application for an adjournment has been made by Mr Chivima; Mr Chivima is happy for the hearing to proceed in his absence; there is a strong public interest in the expeditious disposal of the case. 3

4 In these circumstances, the panel has decided that it is fair, appropriate and proportionate to proceed in the absence of Mr Chivima. The panel will draw no adverse inference from Mr Chivima s absence in its findings of fact. Charge That you, a registered nurse: 1. On 2 November 2016 were convicted at Redhill Magistrates Court of driving a motor vehicle with excess alcohol contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act AND, in light of the above, your fitness to practise is impaired by reason of your conviction. Consensual Panel Determination At the outset of this hearing, Ms Hartley informed the panel that prior to this hearing a provisional agreement of a CPD had been reached with regard to this case between the NMC and Mr Chivima. The agreement, which was put before the panel, sets out Mr Chivima s full admission to the facts alleged in the charges, that his actions amounted to misconduct, and that Mr Chivima s fitness to practise is currently impaired by reason of his conviction. It is further stated in the agreement that an appropriate sanction in this case would be a suspension order for a period of 12 months. The panel has considered the provisional agreement reached by the parties. That provisional agreement reads as follows: 4

5 The Nursing and Midwifery Council and Mr Tawanda Lovejoy Chivima ( the Registrant ), PIN 10F1833E ( the parties ) agree as follows: Proceeding in Absence 1. The Registrant and his representative, the Royal College of Nursing ( the RCN ), are aware of the CPD hearing on 1 August The Registrant will not be attending the hearing and is content for it to proceed in his and his representative s absence. The RCN will endeavour to be available by telephone should clarification on any point be required. The parties agree that it is their interests and in the public interest for this agreement to be considered at the hearing on 1 August 2017 as scheduled. Charge 2. The Registrant admits the following charge: That you, a registered nurse: 1. On 2 November 2016 were convicted at Redhill Magistrates Court of driving a motor vehicle with excess alcohol contrary to section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act AND, in light of the above, your fitness to practise is impaired by reason of your conviction Background 3. The agreed facts are as follows: 5

6 3.1. On 4 November 2016 the NMC received a self-referral from the Registrant which detailed that on 2 November 2016 he received the conviction set out at paragraph 2 of this agreement and was sentenced to: weeks imprisonment suspended for 18 months; a victim surcharge of ; costs of ; disqualification from driving for 50 months. A copy of the certificate of conviction is appended at Appendix 4. The NMC conducted further investigations and deemed it necessary to refer the matter for an Interim Order hearing. At the initial hearing on 19 December 2016 the Registrant received an 18 month interim suspension order which remains in place at the date of this agreement The current case was preceded by substantive finding against the Registrant by the NMC which culminated in a 3 month suspension order imposed on 1 December 2015 by the Conduct and Competence Committee ( the CCC ). A copy of the decision letter is appended at Appendix This previous case was a self-referral dated 14 May 2014 which set out that the Registrant had received the following driving related convictions between : On 12 May 2008 at North West Surrey Magistrates Court driving a motor vehicle with excess alcohol on 26 April 2008 contrary to s.5(1)(a) of the Roads and Traffic Act 1998; 6

7 On 20 April 2010 at Stratford Magistrates Court- driving a motor vehicle with excess alcohol on 10 April 2010 contrary to s.5(1)(a) of the Roads and Traffic Act 1998; On 12 October 2010 at Enfield Magistrates Court- driving a motor vehicle with excess alcohol on 3 October contrary to s.5(1)(a) of the Roads and Traffic Act 1998, driving whilst disqualified contrary to s. 103(1)(b) of the Road Traffic Act 1988 and using a vehicle while uninsured contrary to s. 143 (2) of the Road Traffic Act 1988; On 4 March 2013 at West and Central Hertfordshire Magistrates Court driving a motor vehicle with excess alcohol on 3 October contrary to s.5 (1)(a) of the Roads and Traffic Act 1998, driving whilst disqualified contrary to s.103(1)(b) of the Road Traffic Act 1988 and using a vehicle while uninsured contrary to s. 143 (2) of the Road Traffic Act A copy of the Certificates of Conviction and Police MG5 reports are appended at Appendix 1. The Registrant received his first 3 convictions while he was a student at University however he failed to disclose this to the University. He had also failed to disclose these convictions to the NMC At the hearing the Registrant stated that the mitigating factors that should be considered included: he had a combination of family, financial and family pressures and responsibilities that he had been unable to balance and deal with which led him to going out more, binge-drinking and then driving while under the influence of alcohol and had ultimately led to his convictions; 7

8 he took his convictions seriously and recognised that by drink driving he had endangered his life and the lives of others; he had undergone the required courses on drink driving, to which he was sentenced to, and completed another course on his own volition; the courses he had undertaken had educated him on the impact of alcohol, the implications it could have on his health, the consequences of driving while under the influence of alcohol; he would never repeat the same mistakes On review of the order on 19 February 2016, a Panel allowed it to lapse as of 31 March A copy of this decision letter is appended at Appendix The Registrant secured employment at Cygnet Lodge following the lapse of his substantive suspension. Subsequent to his second self-referral, he resigned and as of April 2017 he has been working as a support worker at [PRIVATE], a homeless support group project. Impairment 4. The Registrant accepts that his fitness to practise is impaired and that his conviction amounts to a breach of the following paragraphs of the NMC s Code of Professional standards of practice and behaviour for nurses and midwives (March 2015): 20. Uphold the reputation of your profession at all times; 8

9 To achieve this you must: 20.4 Keep to the laws of the country in which you are practising. The Registrant accepts that the conduct which gave rise to his conviction was and would be considered deplorable by the public and his fellow professionals. The Registrant accepts that as a registered nurse he is in a position of trust and that his actions have deeply undermined that trust and further undermined the reputation of the profession. Consequently, the parties agree that the Registrant s conduct fell significantly below the standards expected of a registered nurse. 5. The Registrant also admits that his fitness to practise is impaired according to the guidance set down by Dame Janet Smith in the fifth report into the Shipman enquiry, which has since been endorsed in cases such as Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 297 (Admin). Following that guidance, the Registrant accepts that he: b. Has in the past brought and/or is liable in the future to bring the 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 professions. Registrant s response 6. The Registrant has provided a response dated July 2017 which is appended at Appendix 5. The Registrant admits the charge and current impairment unreservedly and states that he has now had time to reflect more deeply and acknowledge the risks that I caused to myself and the wider public, as well as 9

10 the impact my actions had on my family, my health and most importantly the reputation of the profession. My actions were wrong and had serious consequences which I am willing to accept. I deeply apologise to the NMC, members of the public, my employer and my family. The Registrant further states that I recognise that my actions fell below the standards expected of me. My behaviour impacted upon the safety of the public and I am aware that I could have lost my life, but also taken the lives of others if I had caused an accident. Driving whilst under the influence of alcohol is unacceptable for anyone but more so for a professional who has the care of people in vulnerable circumstances I apologise. 7. [PRIVATE] 8. The Registrant has also submitted several testimonials to the NMC to attest to his character and/or his practise as a nurse (Appendix 5). They state that the Registrant: 8.1 is an excellent nurse with the ability to both provide outstanding care to his patients as well as manage a team of staff, taking into consideration various needs and skill mixes within the team.. he is naturally welcoming and considerate ; 8.2 a very competent, dedicated, hardworking individual in his professional capacity, often working tirelessly to carry a significant degree of hospital responsibilities, both clinical and managerial as well as administrative, demonstrating time and again his loyalty and commitment to the service, above and beyond the call of duty ; 8.3 has always had a calm and professional personality mixed with humility and resilience, we valued him very much as a member of our team.always ensured that the patient needs were met ; 10

11 8.4 exhibited great communication skills towards both staff and patients. His knowledge of the speciality was outstanding. He was resourceful and showed commitment to the work at all times. 9. The Registrant s cooperative conduct and engagement with the NMC investigation and his insight into how his actions have affected the reputation of the nursing profession demonstrates that he is taking the appropriate and necessary steps to address the failings that have been raised. [PRIVATE]. 10. In particular, the Panel will note that the Registrant self-referred to the NMC and made full admissions at all stages of the NMC s investigation. The Registrant acknowledged that his behaviour was wrong and fell below the standards that are expected [PRIVATE]. The parties agree that this demonstrates that the Registrant has fully accepted his failings and as such, he can properly be described as having insight. 11. The Registrant is currently working at [PRIVATE], a homeless support group, as support worker and has provided a reference (Appendix 5) from his manager. This states that Mr Chivima has shown to have the qualities that a support worker role requires and has shown both patience and understanding towards the customers he has displayed a good work ethic, working together with his team and colleagues and interacts with them well. The Registrant has also obtained a position volunteering once a week as Health Care Assistant. 12. Although there is evidence that the Registrant has shown insight [PRIVATE], in light of the history of similar convictions leading up to the latest conviction there remains a risk of repetition albeit of a reduced level. The parties therefore agree that a finding of current impairment is in the wider public interest. The parties agree that not to find current impairment given the agreed facts would seriously undermine public confidence in the nursing profession and 11

12 in the NMC as the regulator of the profession. Accordingly, it is agreed between the parties that the Registrant s fitness to practise is currently impaired. Sanction 13. The parties agree that the appropriate sanction in this case is a 12 month suspension order. 14. The parties have considered the September 2016 Edition of the Indicative Sanctions Guidelines ( the ISG ) and agree that the proposed sanction is a proportionate one that balances the public interest, including public confidence in the profession and the NMC, with the Registrant s interests. 15. The aggravating features of this case are: 15.1 there are previous NMC findings against the Registrant for previous convictions which are similar in nature; 15.2 the Registrant re-offended again despite offering an assurance in recent substantive NMC proceedings that he would not repeat his mistakes; 15.3 the significant damage to the reputation of the profession occasioned by the Registrant s conviction. 16. The mitigating features of this case are: [PRIVATE]; [PRIVATE]; 12

13 16.3. the Registrant s self- referral and early admissions; the conduct did not occur whilst the Registrant was on duty as a nurse and/or making his way to work as a nurse; no concerns have been raised regarding the Registrant s clinical competence; there was no harm to patients and/or members of the public; the Registrant has demonstrated significant insight and remorse in relation to his conduct and has evidenced steps taken towards remediation which acts to address the risk of repetition; the Registrant s full engagement with the NMC. 17. The parties first considered taking no further action. It is acknowledged that taking no further action would be an exceptional step. Whilst the conviction that forms the basis of the current case in of itself may not be considered the most serious, this is in the context of a pattern of repeat offending that culminated in recent substantive findings by the NMC. It is agreed that the public interest would therefore not be properly served by taking no further action. 18. Likewise, a caution order is not appropriate as paragraph 61 of the ISG states that: a caution 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. 13

14 It is agreed that the Registrant s actions in this matter are not at the lower end of the spectrum as they form part of a wider pattern of recent offending for similar offences. 19. It is agreed by the parties that a conditions of practice order would also be inappropriate in this instance. These matters do not relate to clinical failings and it is therefore felt that no practical or workable conditions could be imposed to deal with the risks highlighted in this matter. 20. The parties agree that a suspension order is proportionate and appropriate in this case this is in light of paragraph 68 of the ISG which states: 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. 21. The parties agree that the Registrant s conviction was a serious departure from the standards expected of a nurse. It is accepted that this incident did not occur whilst the Registrant was on duty or travelling to work as a nurse, and also that there was no harm to patients and/or the wider public. Furthermore [PRIVATE], it is agreed that there is evidence of meaningful insight which acts to address concerns regarding deep-seated personality or attitudinal issues. 22. A period of suspension will be sufficient to uphold the public interest. It marks the seriousness of the Registrant s conduct in the context of previous findings by the NMC and will serve as a reminder to the Registrant and all members of the profession that criminally liable behaviour is not acceptable. It will also ensure members of the public can be reassured that proper standards of conduct will be upheld by the NMC. 14

15 23. It is agreed that 12 months is an appropriate and proportionate period to fulfil these purposes. Furthermore this will allow the Registrant sufficient time for further reflection and to ensure that public confidence in the standards of the profession and the regulator remain intact. It is agreed that a suspension for any other period would not be sufficient in the circumstances of the case and in light of the evidence. 24. The parties are also mindful of the case of Fleischmann (The Council for the Regulation of Health Care Professionals v (1) General Dental Council, (2) Alexander Fleischmann [2005] EWHC 87 (Admin)), particularly at paragraph 54 where Mr Justice Newman said I am satisfied that, as a general principle, where a practitioner has been convicted of a serious criminal offence or offences he should not be permitted to resume his practice until he has satisfactorily completed his sentence. Only circumstances which plainly justify a different course should permit otherwise. Such circumstances could arise in connection with a period of disqualification from driving or time allowed by the court for the payment of a fine. The rationale for the principle is not that it can serve to punish the practitioner whilst serving his sentence, but that good standing in a profession must be earned if the reputation of the profession is to be maintained. 25. It is agreed between the parties that the 18 month suspended sentence to which the Registrant is currently subject as a result of his conviction will expire on 2 May This falls before the expiry of the 12 month suspension proposed by this agreement. Accordingly, there is no risk in this case that the Registrant may resume practice before his criminal sentence has been completed and in so doing act to undermine the reputation of the profession. 26. The parties agree that striking off order would be a disproportionate sanction [PRIVATE] It is accepted between the parties that a suspension order is 15

16 necessary to convey a clear public message of fundamental standards of professional conduct. Interim Order 27. It is agreed that the likelihood of the Registrant appealing this determination is remote, given it has been reached by agreement. However, in the event that he were to decide to do so, then in the absence of an interim order the public interest would not be protected until such an appeal had concluded: the public would not expect a nurse who had admitted the conduct which is the subject of these charges to frustrate a suspension by appealing the order. 28. It is therefore agreed that an interim suspension order for 18 months, to cover any appeal which might be made, is otherwise in the public interest. In the event no appeal is made, the interim order will fall away once the 28-day appeal period has elapsed, and the substantive order will take effect. 29. The parties understand that this provisional agreement cannot bind a Panel, and that the final decision on findings impairment and sanction is a matter for the Panel. The parties understand that, in the event that a Panel does not agree with this provisional agreement, the admissions to the charges set out at paragraph 2 above, and the agreed statement of facts set out at paragraph 3 above, may be placed before a differently constituted Panel that is determining the allegation, provided that it would be relevant and fair to do so. Here ends the provision agreement between the NMC and Mr Chivima. The provisional agreement was signed by Mr Chivima and the NMC on 28 July

17 Decision and reasons on the CPD: The panel decided to accept the provisional agreement, with amendment. The panel heard and accepted the legal assessor s advice. She referred the panel to the NMC Sanctions Guidance and to the NMC s guidance on Consensual Panel Determinations, August She reminded the panel that they could accept, reject outright or, with the agreement of the parties, amend the provisional agreement reached between the NMC and Mr Chivima. Further, the panel should consider whether the provisional agreement would be in the public interest. This means that the outcome must ensure an appropriate level of public protection, maintain public confidence in the professions and the regulatory body, and declare and uphold proper standards of conduct and behaviour. The panel had regard to all of the documentary evidence, including the following: Mr Chivima s reflective piece, dated July 2017 [PRIVATE] Certificate of completion Drink-Drive Awareness Course, dated 20 March 2017 Testimonial from the Director of Drink-Drive Awareness Course, undated [PRIVATE] Eight positive testimonials, including four from former colleagues [PRIVATE] The panel therefore invited the parties to consider amending the provisional agreement by adding the following paragraph, which would appear at paragraph 27 of the agreement: 27. This order should be reviewed by a Fitness to Practise Committee prior to its expiry. The Registrant agrees to cooperate with the NMC to ensure that the 17

18 reviewing panel is presented with sufficient information for it to be able to confirm or otherwise that... the Registrant s use of alcohol [PRIVATE] [does not] pose a public protection risk. [PRIVATE]. Ms Hartley informed the panel that both the NMC and the RCN, on behalf of Mr Chivima, accepted the amendment as proposed by the panel. The panel noted that Mr Chivima admitted the facts of the charge. Accordingly the panel was satisfied that the charge is found proved by way of Mr Chivima s conviction as set out in the signed provisional agreement before the panel. The panel then went on to consider whether Mr Chivima s fitness to practise is currently impaired. Whilst acknowledging the agreement between the NMC and Mr Chivima, the panel has exercised its own independent judgement in reaching its decision on impairment. The panel had regard to a memorandum of conviction detailing the conviction referred to in the charge. The panel also took into consideration the case of Grant. The panel concluded that, through his conviction, Mr Chivima had failed to uphold the reputation of the nursing profession and had breached fundamental tenets of the nursing profession. In this respect, the panel endorsed paragraphs 4 and 5 of the provisional agreement. [PRIVATE] The panel also bore in mind Mr Chivima s own response to the charge, at paragraph 6, which stated: My behaviour impacted upon the safety of the public and I am aware that I could have lost my life, but also taken the lives of others if I had caused an accident. Driving whilst under the influence of alcohol is unacceptable for anyone 18

19 but more so for a professional who has the care of people in vulnerable circumstances I apologise. The panel was encouraged by Mr Chivima s remorse, and insight [PRIVATE] However, the panel was concerned that this is Mr Chivima s second referral to the NMC and his fifth conviction for drink driving offences. The panel bore in mind that Mr Chivima has a history of relapsing, despite his previous promises to the NMC. The panel concluded that there is a risk of Mr Chivima repeating his behaviour and, by his own admission, putting the wider public at risk of harm. The panel therefore determined that a finding of current impairment on the ground of public protection is necessary. The panel bore in mind that its primary function was to protect patients and the wider public interest which includes maintaining confidence in the nursing profession and upholding proper standards of conduct and performance. The panel went on to ask itself whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment of fitness to practise were not made in the current circumstances. Given the nature of Mr Chivima s repeated behaviour and his own admissions to breaching fundamental tenets of the profession, the panel concluded that it would and that, therefore, a finding of current impairment on the ground of public interest is also required. Having found Mr Chivima s fitness to practise currently impaired the panel went on to consider what sanction, if any, it should impose in this case. The panel has borne in mind that any sanction imposed must be appropriate and proportionate. The purpose of any sanction is not intended to be punitive even though it may have a punitive effect. The panel had careful regard to the NMC Sanctions Guidance. Decision on sanction is a matter for the panel exercising its own independent judgement. 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. 19

20 The panel first considered whether to take no action but concluded that this would be inappropriate on the grounds identified within the provisional agreement. Next, in considering whether a caution order would be appropriate in the circumstances, the panel also concluded that this would be inappropriate on the grounds identified within the provisional agreement. The panel next considered whether placing conditions of practice on Mr Chivima s registration would be a sufficient and appropriate response. The panel is 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 behaviour identified in this case was not something that can be addressed through supervision or retraining. Furthermore the panel concluded that the placing of conditions on Mr Chivima s 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, and had regard to the NMC Sanctions Guidance, which states: 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. The panel was satisfied that there is no evidence of deep seated personality or attitudinal problems [PRIVATE] The panel also relied on the case of Fleischmann as set out in the provisional agreement. The panel has determined that a suspension order would be the appropriate and proportionate sanction. The panel considered that imposing such a an order for a 20

21 period of twelve months would allow Mr Chivima the opportunity to demonstrate progress [PRIVATE] In all the circumstances, the panel was of the view that making a striking off order would be a disproportionate measure, noting that there had not been any issues identified with Mr Chivima s clinical practice. A suspension order would also allow an otherwise competent nurse the opportunity to return to practice, once he has been able to demonstrate that he has remedied his current issues. Determination on interim order: 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 paragraphs 27 and 28 of the provisional agreement, and had taken into consideration the seriousness of the matters in this case, in reaching the decision to impose an interim order. 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 suspension order 28 days after Mr Chivima is sent the decision of this hearing in writing. That concludes this determination. 21