Conduct and Competence Committee Substantive Hearing

Transcription

1 Conduct and Competence Committee Substantive Hearing 19 February 2016 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: NMC Pin: Mr Richard Carlton Edgar 88I1868E Part(s) of the register: Registered Nurse Sub Part 1 Adult Nursing November 1991 Area of Registered Address: Type of Case: Panel Members: England Misconduct Trevor Spires - Lay (Chair) Noreen Kent - Registrant member David Braybrook - Lay member Legal Assessor: Nicholas Leviseur Panel Secretary: NURSING AND MIDWIFERY COUNCIL: Mr Edgar: John Barker Represented by Miranda Stotesbury on behalf of the Nursing and Midwifery Council Regulatory Legal Team. The registrant was neither present nor represented. Outcome: Interim Order: CPD accepted Strike Off Interim suspension order 18 months Page 1 of 12

2 Reasons in relation to service and proceeding in the absence of the Registrant Mr Edgar is not present and is not represented at this hearing. The panel has determined that the notice of hearing has been served in accordance with the rules and that it is fair and appropriate to proceed with the hearing in the absence of Mr Edgar. The panel has considered all the information provided and the submissions made by the NMC case presenter Ms Stotesbury. The panel also accepted the advice of the legal assessor. The notice letter dated 13 January 2016 was posted by recorded delivery to the registered address of Mr Edgar. The panel is satisfied that, in accordance with Rules 11 and 34 of the NMC (Fitness to Practice) Rules Order of Council 2004, service of notice has been duly effected. Ms Stotesbury submitted that it was in the interests of justice to proceed in the absence of Mr Edgar. She told the panel that Mr Edgar s legal representatives, the RCN, ed the NMC on 16 February 2016 stating that Mr Edgar would not be attending the hearing and nor would he be represented in his absence, but he would be available via telephone link if required. Ms Stotesbury also informed the panel that Mr Edgar had agreed and signed the proposed Consensual Panel Determination ( CPD ). The panel heard further advice from the legal assessor which it accepted. The panel is aware that it must approach its discretion to proceed in the absence of Mr Edgar with the utmost care and caution. It balanced the potential prejudice which might be caused to Mr Edgar by not being present, with the need to progress and dispose of cases as expeditiously and as fairly as possible. The panel noted that Mr Edgar has engaged with the NMC throughout the process and has signed a CPD agreement. Mr Edgar has not requested an adjournment and through his representatives, the RCN, has indicated he will not be attending. Therefore the panel concluded that he had voluntarily absented himself from the hearing and that an adjournment would serve no useful purpose. The panel concluded that it is both fair and Page 2 of 12

3 in the interests of justice, and in Mr Edgar s own interests, for this hearing to proceed despite his absence. Decision The panel heard from Ms Stotesbury that prior to this hearing a provisional agreement on a CPD had been reached with regard to this case between the NMC and Mr Edgar. Mr Edgar at this time had had access to, and the benefit of, legal representation. The agreement, which was put before the panel, sets out Mr Edgar s full admissions to the facts of the charges, and that his fitness to practise is currently impaired by reason of his conviction. It is further stated in the agreement that the appropriate sanction in this case would be a striking off order. The agreement was signed by Mr Edgar, and by an NMC lawyer, on 12 February 2016 and 19 February 2016 respectively. Further, the panel had sight of a reflective piece written by Mr Edgar dated 28 May The panel heard and accepted the advice of the legal assessor. The panel has considered the provisional agreement reached by the parties. It read: Consensual panel determination: provisional agreement The Nursing and Midwifery Council and Mr Richard Carlton Edgar ( the parties ), PIN 88I1868E agree as follows: Factual background 1. Mr Richard Carlton Edgar ( the registrant ) admits the following charges: That you, a Registered Nurse: 1. On 13 August 2014, at Rotherham Magistrates Court, were convicted of theft by employee, namely that between Friday 8 November 2013 and Thursday 9 January 2014 at Rotherham you stole prescription drugs of a value unknown belonging to Rotherham NHS Foundation Trust contrary to Section 1(1) and 7 of the Theft Act AND in light of the above, your fitness to practise is impaired by reason of your conviction. 2. The facts are as follows: Page 3 of 12

4 2.1. The NMC received a referral from Ms 1, the Chief Nurse at the Sheffield Teaching Hospitals NHS Foundation Trust on 28 May The referral related to an allegation that the registrant was being investigated by the South Yorkshire Police for theft of drugs from his previous employer, the Rotherham NHS Foundation Trust ( the Trust ) The registrant qualified as a nurse in In 2001, he started working for the Trust as a junior charge nurse on a surgical ward at the Rotherham General Hospital. In 2009, the registrant became the Endoscopy Service Manager on the Endoscopy Unit. This was a Band 8a role and the registrant was responsible for managing a team of nurses and administrative staff as well as the waiting lists for various departments for endoscopy procedures The Endoscopy Unit had five dedicated rooms where patients were booked in for procedures. Four of those rooms contained controlled drugs that were locked away and could only be accessed via a key Between November 2012 and May/June 2013 the registrant was experiencing difficulties in his professional and personal life, including uncertainty around his job role changing. Initially, the registrant began drinking to deal with the personal stresses he was experiencing. Between 8 November 2013 and 9 January 2014, the registrant began taking the controlled drugs fentanyl and pethidine from the unit and self-administering the medication by way of intramuscular injection Initially, the registrant took small amounts of leftover medication that was lying around the unit instead of disposing of it in the appropriate manner. The first time the registrant took drugs from the unit, he also took a needle and syringe in order to self-administer the drugs intramuscularly. He took the drugs whilst sitting in his car, having pulled off a motorway on his journey home. The registrant then drove home with the medication in his system After a period of time, the registrant started to take drugs directly from the locked medication cupboards on the unit and began forging entries in the controlled drugs register in order to cover up the fact that he had taken the medication. In his police interview the registrant explained that: Eventually, I thought, you know, I could I thought, you know I could write somebody s name in [the controlled drug s register] and nobody s going to think any of the wiser really. It s just going to blend into other entries that are in there. As long as the numbers balance, nobody s really going to check 2.7. In relation to the patient names that the registrant wrote in the controlled drugs register, the registrant explained in his police interview that they were a mixture of real names and names of made up patients: Sometimes it would be a patient that I might have seen for some reason during that day. Either to talk to or to some interaction with the name, it stuck in my head for whatever reason. Or, it would be a made up name The registrant would also forge the signatures of the person who was supposed to witness the controlled drugs register. He explained in his police interview that Sometimes it were just scribbles because doctor s signatures are notoriously indecipherable (sic). One of the girls that worked in the department, she d got a Page 4 of 12

5 fairly easy signature to copy so, and she would give quite a lot of these drugs so, again, I used that one so it wouldn t stand out as readily The registrant in the main self-administered fentanyl because it went into his system quicker but occasionally took pethidine as well. The registrant accepts that he took drugs from the medication cupboard on approximately 15 occasions between November 2013 and the beginning of January 2014 and on the last of these occasions took approximately four ampoules. He also accepts that he forged the controlled drugs register on approximately twenty occasions At some point in January 2014, it became apparent that drugs were missing from the unit. As the unit manager, the registrant himself was responsible for escalating the concerns about missing stock. The registrant requested that the chief pharmacist examine the controlled drugs register as per Trust protocol. Thereafter, the Patient Safety Team became involved and began an investigation into the missing stock. The registrant did not admit that he had taken the medication once the investigation was started and sought to persuade other staff members that there was bound to be an innocent explanation for the discrepancies in the records. The registrant participated in the Patient Safety Team s Investigation, completed an incident form about the missing medication and unsuccessfully attempted to change an entry on a patient s electronic record to try and cover up his theft In March 2014, while the Patient Safety Team s investigation was still ongoing, the registrant left the Trust and began employment at the Sheffield Teaching Hospital On 19 May 2014 the registrant was questioned by the police as a witness in relation to the missing medication. At this stage the registrant did not admit that he was responsible for the theft of medication. The registrant subsequently returned to the police station two days later on 21 May 2014 with a solicitor and made full admissions to stealing medication from Rotherham General Hospital. The registrant expressed remorse and regret for his actions during his interview and recognised that I should have gone to the doctors instead of stealing drugs to deal with his personal problems Following the registrant s admissions, the police informed the registrant that he had 24 hours to inform his employer and he initiated a meeting via the Sheffield Teaching Hospital s HR department on 22 May The Sheffield Teaching Hospital considered the allegations to be gross misconduct and in order to facilitate a fair investigation suspended the registrant from duty immediately The registrant attended a disciplinary hearing on 21 July 2014 in which he admitted to stealing medication from Rotherham General Hospital. The registrant provided a written statement giving his account of what had happened, which is attached as Appendix 1. The disciplinary panel upheld the allegations and the registrant was dismissed from his employment on the same day On 14 July 2014 the registrant pleaded guilty to a single charge of theft at Rotherham Magistrates Court. The registrant was subsequently sentenced on Page 5 of 12

6 13 August 2014 and received a 26 week prison sentence, suspended for one year. He was ordered to complete 200 hours of supervised unpaid work during this time. The registrant s criminal conviction was reported in the local press. Impairment 3. The registrant admits that by virtue of his criminal conviction for theft of medication from his employer, for which he received a custodial sentence (albeit suspended), his actions amount to a serious departure from the standards expected of a registered nurse. 4. Ms Edgar accepts that as a registered nurse he holds a privileged position of trust and that his actions have undermined that trust and undermined the reputation of the profession. This is because the public expect registered nurses to act with integrity at all times and by using his privileged position as a nurse to gain access to drugs that belonged to the Trust and were intended for patients, the registrant abused his position of responsibility for his own personal gain. Furthermore, the public expect nurses to abide by the laws of this country and by receiving a serious conviction for a dishonesty offence; the public s view of the registrant and the wider nursing profession has been damaged. 5. The parties therefore agree that Mr Edgar s actions fell significantly below the standards expected of a registered nurse and in particular the following parts of The Code: Standards of conduct, performance and ethics for nurses and midwives (NMC 2008): 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 Paragraph 49: You must adhere to the laws of the country in which you are practising. Paragraph 61: You must uphold the reputation of your profession at all times. 6. As a result of these departures from The Code, Mr Edgar admits that his fitness to practise was and is impaired by reason of his conviction because, in accordance with the principles set out by Mrs Justice Cox in CHRE v NMC and Grant [2011] EWHC 927 (Admin) and the four questions posed by Dame Janet Smith in the Fifth Shipman Report, he : 6.1. Has in the past brought the professions into disrepute because he has been convicted of a serious criminal offence for dishonesty. He has also abused his privileged position as manager of the Endoscopy Unit by stealing medication that he only had access to by virtue of his registered status. The registrant further accepts that his actions have brought the professions into disrepute because he concealed his thefts by forging the controlled drugs register with fake patient names and forged signatures. Additionally, by taking medication for his own use, the registrant depleted the unit of stock intended for patients and which would have to be replenished out of Trust funds. Finally, the registrant s actions have brought the profession into disrepute because he not only stole medication but took steps to conceal the theft and potentially jeopardised his Page 6 of 12

7 colleagues who could have been suspended and investigated themselves. It is agreed between the parties that such conduct has a significant impact upon the reputation of the profession and has the effect of bringing it into disrepute Has in the past breached one of the fundamental tenets of the professions because the preamble to The Code makes it clear that nurses must be open and honest, act with integrity and uphold the reputation of the profession and by acting dishonestly the registrant has failed to adhere to this fundamental tenet Has in the past acted dishonestly in a clinical setting on repeated occasions over a prolonged period of time of nearly three months between November 2013 and January Although the registrant did eventually fully admit to his dishonesty, this was after several months and after the police became involved. The registrant therefore concealed his dishonesty for a period of several months after the thefts took place. 7. In addition to the above, Mr Edgar acknowledges that the nature of his conduct, which relates to a criminal conviction for a dishonesty offence, is not easily remediable because it suggests an attitudinal failing of a serious nature. Although the registrant has shown remorse and a degree of insight by eventually admitting his actions to the police, pleading guilty to the offences and admitting the allegations before the NMC, it is agreed that there remains a risk of repetition because of the repeated nature of the registrant s criminal activity, which involved taking medication on approximately 15 occasions over several months and forging approximately 20 records in the controlled drugs register. As such, Mr Edgar accepts that he is liable to bring the professions into disrepute, breach one of the fundamental tenets of the profession and act dishonestly in the future. The registrant therefore accepts that a finding of impairment is also necessary to guard against the risk of repetition. 8. In all the circumstances, notwithstanding the admissions the registrant has made to the charges, Mr Edgar recognises that his conviction is so serious that the public interest would be adversely affected if no finding of impairment were made. The registrant acknowledges that the due to the public interest, a finding of impairment should follow in order to uphold proper standards of conduct and maintain confidence in the profession. This would mark the conduct as inappropriate and guard against the risk of repetition. 9. It is therefore agreed that a finding of impairment is necessary to uphold the public interest by maintaining public confidence in the profession and in the regulatory body, and declaring and upholding proper standards of conduct and behaviour. Sanction 10. Mr Edgar accepts that his conduct is and would be considered fundamentally incompatible with being a registered professional by the public and his fellow professionals and that the appropriate sanction in this case is a striking off order. 11. The following aggravating factors are present: The registrant occupied a position of authority as a unit manager at Rotherham General Hospital and abused that position by obtaining unauthorised access to Trust medication Page 7 of 12

8 11.2. The registrant stole medication that was intended for patients The registrant attempted to falsify a patient s records, forged colleagues signatures and created fake entries in the controlled drugs register on multiple occasions The registrant received a custodial sentence (albeit suspended) for a criminal offence The registrant did not immediately admit his actions but waited until the police became involved before telling the truth The registrant sought to persuade a colleague investigating the thefts that there was an innocent explanation for them The registrant s actions amount to a pre-meditated course of dishonest conduct over a period of nearly three months The registrant displayed a reckless attitude by endangering the public at large when he drove home having self-administered drugs on the side of a motorway. 12. The following mitigating factors are present: The registrant does not have any previous NMC referrals against him The registrant has engaged with the NMC s proceedings and made full admissions At the material time, the registrant was faced with difficult personal circumstances There has been no repetition since the incidents took place. 13. It is agreed that, in light of the above aggravating features, the registrant s conviction is so serious that only a striking-off order would be proportionate in the circumstances and is the only appropriate sanction to satisfy the public interest in this case. In reaching this conclusion, the parties have had regard to the fact that the purpose of sanctions is not to punish the practitioner, but to protect the public interest, which includes declaring and upholding proper professional standards and maintaining public confidence in the reputation of the profession. 14. The parties have also had regard to paragraphs 35 and 36 of the NMC s Indicative Sanctions Guidance to Panels, which states: Dishonesty, even where it does not result in direct harm to patients but is related to matters outside of a nurse or midwife s professional practice, for example, fraudulent claims for monies, is particularly serious because it can undermine the trust the public place in the profession. Honesty, integrity and trustworthiness are to be considered the bedrock of any nurse or midwife s practice. In Parkinson v NMC Mr Justice Mitting said: Page 8 of 12

9 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 has acted dishonestly, who does not appear before the Panel either 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 than direct erasure. 15. In all the circumstances, it is agreed that the facts underlying the registrant s conviction are so serious that his actions are incompatible with ongoing registration and that public confidence in the professions cannot be sustained if the registrant is not removed from the register. This is in light of the pre-meditated and prolonged nature of the registrant s dishonesty, which incorporated other medical professions and involved a gross breach of his privileged position of trust as a ward manager. This was not a one-off isolated incident and although there has been no repetition of the dishonesty since the incidents took place, it is agreed that without a demonstration of full insight into the seriousness of the conviction and its effect on the reputation of the profession, the public interest can only be satisfied by a striking-off order being made. 16. The parties have also given consideration to the other sanctions available in ascending order. To take no further action or impose and caution order would not be appropriate and would not adequately protect the public interest in circumstances where Mr Edgar s has received a criminal conviction for dishonesty and a custodial sentence. Such sanction would not maintain public confidence in the profession and in the regulatory body, nor declare and uphold proper standards of conduct and behaviours. There is also a risk of repetition and therefore such a sanction is inappropriate 17. It is further considered that conditions of practice order would not be proportionate. The circumstances of the case are such that there are no workable conditions which could address the offences or which would satisfy the wider public interest. Mr Edgar s dishonesty and conduct is such that it is not easily remediated. The failings are not of a clinical nature and it would be difficult to formulate conditions to prevent the repetition of dishonest or illegal behaviour. In this case, there are no conditions to place on Mr Edgar s character and therefore such a sanction is also considered inappropriate. 18. A suspension order would not be appropriate in this case due to the seriousness of the conduct. In particular, this was not a single incident of misconduct and the dishonesty was pre-mediated and took place while Mr Edgar was at work in a clinical setting. The dishonesty was persistent and had multiple facets in that the registrant forged the controlled drugs register in order to allow him to steal prescription drugs. He also sought to cover up his involvement in the theft when an investigation was started. The parties therefore agree that the seriousness of the misconduct is such that it is fundamentally incompatible with Mr Edgar s continued registration as a nurse. A striking-off order is the only sanction sufficient to uphold the public interest by maintaining public confidence in the profession and in the NMC, and declaring and upholding proper standards of conduct and behaviour. Page 9 of 12

10 19. It is for the reasons stated above therefore that a striking-off order is said to be the most appropriate sanction in this matter. Interim Order 20. It is also necessary for the protection of the public and is otherwise in the public interest for there to be an interim suspension order of 18 months to cover the appeal period. The panel s decision The panel found the facts of the case proved by way of admission and fully accepted the reasoning in the CPD provisional agreement to find current impairment by reason of Mr Edgar s conviction. The panel considered the theft of controlled drugs from an NHS Hospital to be extremely serious. Mr Edgar s actions could not be described as a single instance as they constituted a sustained deception over a period of three months. He abused his position of trust and authority, and acted duplicitously in an attempt to cover up his theft. The absence of insight into how Mr Edgar s actions affected his colleagues and the reputation of the profession concerned the panel and it concluded that there remained a risk of repetition. Further, by driving whilst under the influence of controlled drugs, Mr Edgar endangered members of the public. In light of the scale of Mr Edgar s dishonesty and his lack of insight, the panel came to the conclusion that his fitness to practise is currently impaired by reason of his conviction. The panel went on to consider what sanction was appropriate. The panel first considered whether it would be appropriate to take no action, but determined that, in light of the seriousness of the conviction in this case, this would not be sufficient to protect the public or in the public interest. The panel then considered a caution order. It considered Mr Edgar s dishonest actions to be extremely serious and repeated. Furthermore, such an order would not restrict Mr Edgar s access to controlled drugs and was therefore insufficient to protect the public. Page 10 of 12

11 The panel next considered whether placing conditions of practice on Mr Edgar s registration would be a sufficient and appropriate response. The panel is mindful that any conditions imposed must be proportionate, measurable and workable. The panel concluded that Mr Edgar s actions constituted a grave breach of the fundamental tenets of the profession and brought the nursing profession into disrepute. As such it was not possible to formulate conditions of practice that would be relevant, workable, proportionate and measurable. This sanction would be insufficient to meet the public interest. The details of this case are sufficiently serious to mean that a return to practice would not be appropriate. The panel went on to consider whether a suspension order was the appropriate sanction. It noted paragraph 71 of the ISG requires the panel to be satisfied that there was no evidence of harmful deep-seated personality or attitudinal problem, and that the conduct is not fundamentally incompatible with continued registration. The panel was concerned about the repeated and persistent theft, coupled with the prolonged and premeditated nature of the attempted cover up. It deemed that temporary removal from the register would, be insufficient to meet the public interest and as such a suspension order would not be appropriate. The panel agreed with the content and conclusions of paragraphs 13 to 15 of the CPD agreement and concluded that a striking off order is the only appropriate sanction. It concluded that the theft of controlled drugs from the work place and the manner in which Mr Edgar attempted to cover up his actions is conduct which is fundamentally incompatible with him continuing to be a registered nurse. It noted that Mr Edgar only admitted his deception after he had been interviewed once by the police. The panel concluded that a member of the public would be truly shocked to learn that a Band 8a registered nurse had been stealing and using controlled drugs. The panel concluded that the only appropriate and proportionate sanction is a striking-off order. The panel therefore accepted the draft CPD and made an order directing the Registrar to strike Mr Edgar s name off the Register. Page 11 of 12

12 Decision on Interim Order and reasons The panel noted paragraph 20 of the CPD in which Mr Edgar agreed that it is necessary for the protection of public, otherwise in the public interest, and in his own interest, for there to be an interim suspension order to cover the appeal period. The panel agreed. The panel considered that a suspension order was appropriate for the reasons set out above in its substantive decision to strike Mr Edgar off the register. 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 substantive striking off order 28 days after the decision of this hearing has been served on Mr Edgar. That concludes this case. Page 12 of 12