Nursing and Midwifery Council: Fitness to Practise Committee. Substantive Hearing 3-4 October 2017

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 3-4 October 2017 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: NMC PIN: Brady Nqoba Tshuma 07C1023E Part(s) of the register: Registered Nurse sub part 1 Mental Health (Level 1) 11 July 2007 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: Facts proved: Fitness to practise: Sanction: Interim order: England Misconduct David Newman (Chair, lay member) Andrew Harvey (Lay member) Natasha Duke (Registrant member) Simon Walsh Virginia Sardeli Not present and not represented in absence Represented by Lara Akande, Counsel, NMC Regulatory Legal Team. All (by admission) Impaired Striking-off order None 1

2 Details of charges (as amended) That you a registered nurse, whilst employed by South West Yorkshire Partnership NHS Foundation Trust: 1. On the night shift of 23 July 2014 and in relation to Patient A being found slumped on the floor, failed to: 1.1 Promptly contact the on call doctor and request an immediate review of the patient; 1.2 document the patient s condition within the progress notes; 1.3 place the patient under constant observation whilst awaiting the attendance of the doctor. 2. On 9 June 2015 provided an account within the internal investigation interview stating that you were only aware of Patient A being found slumped on the floor on one occasion. 3. Your actions at charge 2 were dishonest in that you had been made aware by care staff that Patient A had been found slumped on the floor on more than one occasion. 4. On one or more dates listed in schedule 1 you worked for St John of God Hospitaller and received payment for said work whilst in receipt of sick pay from South West Yorkshire Partnership NHS Foundation Trust. 5. On one or more dates listed in schedule 2 you worked for Local Care Force and received payment for said work whilst in receipt of sick pay from South West Yorkshire Partnership NHS Foundation Trust. 2

3 6. Your actions at charge(s) 4 and/or 5 were dishonest in that you were aware that in doing so you were being paid twice, in breach of Trust policy. And, in light of the above, your fitness to practise is impaired by reason of your misconduct. SCHEDULE 1 3 January January January January January January January January January January January January January January January January February February February February February February February February

4 23 February February March March March March March March March March April April April April April April April April April April 2015 Page 6 of April April May May May May May May May May

5 31 May June June June June June June June June June June June June July July July July July July July July July July September September September September September October October October

6 5 October October October October October October October 2015 SCHEDULE 2 23 September September September September September October October October October October October October October October October October October October October October October October

7 7 November November November November November November March March March March March March April April April

8 Decision on Service of Notice of Hearing The panel was informed at the start of this hearing that Mr Tshuma was not in attendance and that written notice of this hearing had been sent to Mr Tshuma s registered address by the Royal Mail signed for service and by first class post on 17 August Further, notice of this hearing was delivered to Mr Tshuma s registered address on 19 August 2017 or collected from the delivery office that same day. The panel took into account that the notice letter provided details of the allegations, the time, dates and venue of the hearing and, amongst other things, information about Mr Tshuma s right to attend, be represented and call evidence, as well as the panel s power to proceed in his absence. Ms Akande submitted 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 light of all of the information available, the panel was satisfied that Mr Tshuma had 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 the Registrant The panel next considered whether it should proceed in the absence of Mr Tshuma. The panel had regard to Rule 21 (2) states: (2) Where the registrant fails to attend and is not represented at the hearing, the Committee 8

9 (a) (b) (c) shall require the presenter to adduce evidence that all reasonable efforts have been made, in accordance with these Rules, to serve the notice of hearing on the registrant; may, where the Committee is satisfied that the notice of hearing has been duly served, direct that the allegation should be heard and determined notwithstanding the absence of the registrant; or may adjourn the hearing and issue directions. Ms Akande invited the panel to continue the hearing in the absence of Mr Tshuma on the basis that he had voluntarily absented himself. Ms Akande submitted that there are 2 witnesses who were on their way to attend the hearing, and that it would be in the public interest for the matter to be heard on the day. Further, there was no reason to believe that an adjournment would secure Mr Tshuma s attendance on some future occasion. 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 care and caution. The panel noted the handwritten correspondence from Mr Tshuma attached to the response to the notice of hearing form, in which he stated: I do not intend to attend the hearing. The hearing must proceed in my absence. The whole procedure has taken several months hence it has been too overwhelming and anxiety provoking for me. I fully admit all the facts of the allegations against me with regard to failing to care for Patient A and I will accept and respect any decision that would be made in my absence. 9

10 The panel also had regard to correspondence from Mr Tshuma dated 25 September 2017, in which he stated: I will not be attending [ the hearing ] I will not be represented. The hearing can go ahead in my absence. I will not participate via the phone or Web ex via the Video link [sic] The panel has decided to proceed in the absence of Mr Tshuma. In reaching this decision, the panel has considered the submissions of the case presenter, and the advice of the legal assessor. It has had particular regard to the factors set out in the decision of R. v Jones (Anthony William), (No.2) [2002] UKHL 5. It has had regard to the overall interests of justice and fairness to all parties. It has noted that: no application for an adjournment has been made by Mr Tshuma; Mr Tshuma has confirmed in writing on two occasions that he will not be attending the hearing and there is no reason to infer that adjourning would secure his attendance at some future date; the charges are serious; there is a strong public interest in the expeditious disposal of the case; two witnesses are attending today to give live evidence; not proceeding may inconvenience the witnesses and their employers; There is some disadvantage to Mr Tshuma in proceeding in his absence. The evidence upon which the NMC relies has been sent to him at his registered address. He has made full admissions to the allegations. He will not be able to challenge the evidence relied upon by the NMC and will not be able to give evidence on his own behalf, but in light of the full admission, this makes little difference. 10

11 In these circumstances, the panel has decided that it is fair, appropriate and proportionate to proceed in the absence of Mr Tshuma. The panel will draw no adverse inference from Mr Tshuma s absence. Decision and reasons on applications to amend the charges The panel heard three applications to amend the charges. An application was made by Ms Akande, on behalf of the NMC, to amend the wording of charges 4 and 5, namely to change the word of to or in both charges. It was submitted by Ms Akande that the proposed amendment involved the correction of a grammatical error, that would provide clarity and more accurately reflect the evidence. She further submitted that the proposed amendments would not change the substance of the charge. Original charges: 4. On one of more dates listed in schedule 1 you worked for Local Care Force and received payment for said work whilst in receipt of sick pay from South West Yorkshire Partnership NHS Trust. 5. On one of more dates listed in schedule 2 you worked for St John of God Hospitaller and received payment for said work whilst in receipt of sick pay from South West Yorkshire Partnership NHS Trust. Proposed amendment: 4. On one or more dates listed in schedule 1 you worked for Local Care Force and received payment for said work whilst in receipt of sick pay from South West Yorkshire Partnership NHS Trust. 11

12 5. On one or more dates listed in schedule 2 you worked for St John of God Hospitaller and received payment for said work whilst in receipt of sick pay from South West Yorkshire Partnership NHS Trust. The panel accepted the advice of the legal assessor that the charges make no grammatical sense as they are currently drafted. There can be no injustice caused to Mr Tshuma by the proposed amendments. The legal assessor further advised in respect of Rule 28 of the Rules, which states: 28. (1) At any stage before making its findings of fact, in accordance with rule 24(5) or (11), the Investigating Committee (where the allegation relates to a fraudulent or incorrect entry in the register) or the Fitness to Practise Committee, may amend (a) (b) the charge set out in the notice of hearing; or the facts set out in the charge, on which the allegation is based, unless, having regard to the merits of the case and the fairness of the proceedings, the required amendment cannot be made without injustice. (2) Before making any amendment under paragraph (1), the Committee shall consider any representations from the parties on this issue. The panel was of the view that such amendments, as applied for, were in the interest of justice. The panel was satisfied that there would be no prejudice to Mr Tshuma and no injustice would be caused to either party by the proposed amendments being allowed. It was therefore appropriate to allow the amendment, as applied for, to ensure clarity and accuracy in the proceedings. Next, Ms Akande informed the panel that the employers named in the charges as South Yorkshire NHS Foundation Trust and South West Yorkshire Partnership NHS Foundation Trust were in fact one and the same employer, the South West Yorkshire 12

13 Partnership NHS Foundation Trust (the Trust). She further informed the panel that the schedules to the charge had been allocated to the wrong employer, and to put this right, the employer referred to in charge 4, Local Care Force, needed to be changed to the employer in charge 5, St John of God Hospitaller, and vice versa. Ms Akande submitted that both proposed amendments were necessary to ensure accuracy and clarity in the proceedings, and that no prejudice would be caused to Mr Tshuma, as the substance of the preamble and charges would remain the same. Original stem: That you a registered nurse, whilst employed by South Yorkshire NHS Foundation Trust: Original charges: 4. On one of more dates listed in schedule 1 you worked for Local Care Force and received payment for said work whilst in receipt of sick pay from South West Yorkshire Partnership NHS Trust. 5. On one of more dates listed in schedule 2 you worked for St John of God Hospitaller and received payment for said work whilst in receipt of sick pay from South West Yorkshire Partnership NHS Trust. Proposed amendments: Stem: That you a registered nurse, whilst employed by South West Yorkshire Partnership NHS Foundation Trust 13

14 Charges: 4. On one or more dates listed in schedule 1 you worked for St John of God Hospitaller and received payment for said work whilst in receipt of sick pay from South West Yorkshire Partnership NHS Foundation Trust. 5. On one or more dates listed in schedule 2 you worked for Local Care Force and received payment for said work whilst in receipt of sick pay from South West Yorkshire Partnership NHS Foundation Trust. The panel heard the advice of the legal assessor, which was as above. The panel was of the view that the amendments, as applied for, were in the interest of justice. It was satisfied that there would be no prejudice to Mr Tshuma and no injustice would be caused to either party by the proposed amendments being allowed. It was therefore appropriate to allow the amendments, as applied for, to ensure clarity and accuracy in the remainder of the proceedings. Admission to the charges Mr Tshuma admitted to all the charges in the returned Case Management form, which was signed by him and dated 12 July Mr Tshuma further indicated in the form that he agreed to all the witnesses and the content of their witness statements, and that he did not wish to question any of the witnesses. Following consideration of the contents of the signed Case Management form, the panel announced all charges as proved by way of Mr Tshuma s admission. 14

15 Background The charges arose whilst Mr Tshuma was employed as a Registered Mental Health Nurse by the Trust, where he had commenced employment in Charge 1 arose on 23 July 2014, when Mr Tshuma was the nurse on duty and was assisted by two health care assistants, Ms 1 and Mr 2. Patient A was a mental health inpatient under the care of Mr Tshuma, who had been administered medication by Mr Tsuma on that evening prior to going to bed. At approximately 2-3am, Patient A, who had been incontinent of urine was found by Mr 2 slumped on the floor of his bedroom. The floor was wet with urine. Patient A s tongue was observed as seeming to be too large for his mouth. Mr 2, along with Ms 1 and Mr Tshuma helped Patient A back to his bed. Concerns were expressed to Mr Tshuma by either Ms 1 or Mr 2 at this point regarding Patient A s condition, but Mr Tshuma responded that the patient would be fine. When Mr 2 checked on Patient A 15 to 20 minutes later, he found him slumped on the bathroom floor. Patient A was producing excessive saliva, his speech was slurred and incoherent. Mr 2 called Ms 1 and Mr Tshuma to help him return Patient A to his bed. Both Ms 1 and Mr 2 again expressed serious concerns regarding Patient A s presentation, but Mr Tshuma s response was again that he will be fine. Repeated concerns were expressed by Ms 2 in particular, who was very worried about Patient A. Mr Tshuma, however, did not take any action until after 4am when the on-call doctor was called. Following checks the doctor contacted a senior doctor for advice. An ambulance was called and Patient A was transferred to a general hospital. It transpired that Patient A may have been suffering medication side effects; he returned from the hospital four days later. An investigation was undertaken by the Trust in June 2015, as part of which Mr Tshuma was interviewed twice. Mr Tshuma s version of events of the evening in question was at 15

16 odds with what had been described by Ms 1 and Mr 2. Mr Tshuma stated that he had found Patient A on the floor of his room on only one occasion at approximately 4am. He told the Trust that Patient A had been incontinent of urine and was hyper salivatory, and so he had called the doctor to conduct a review. Charges 2 and 3 arose from Mr Tshuma s account in his interview. Mr Tshuma went on sick leave PRIVATE on 23 September He also went on sick leave in the first week of January 2015 PRIVATE; he was signed off work sick until he resigned from the Trust in October Charges 4, 5 and 6 arose after it was discovered that Mr Tshuma had been working for two agencies during the periods 23 September 2014 to 16 November 2014 and 3 January 2015 to 10 November 2015, in each case whilst he was still employed by the Trust and on sick leave. During both periods he had been signed off as sick by his GP and was also claiming sick pay. Mr Tshuma was investigated regarding this by the NHS counter fraud authority. [ PRIVATE ] Submissions on misconduct and impairment Having announced its finding on all the facts, the panel then moved on to consider, whether the facts found proved amount to misconduct and, if so, whether Mr Tshuma s fitness to practise is currently impaired. There is no statutory definition of fitness to practise. However, the NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. Oral evidence 16

17 The panel heard evidence from Mr 3, who is a Registered Mental Health Nurse and was employed by the Trust as a Ward Manager at the time of the incidents involving Mr Tshuma. Mr 3 verified the contents of the written statements that he had provided to the NMC and responded to questions by Ms Akande and the panel. He informed the panel that, in the circumstances involving Patient A, Mr Tshuma would have been expected to record Patient A s condition in the progress notes and to place him under constant observation at all times until the doctor arrived, which he had failed to do. This would have been essential in Patient A s case as he had only been titrated on the medication for two days, so it would have been very important to record any observations as to the effects that the medication was having on Patient A s condition. Mr 3 told the panel that it was difficult to predict what would have happened, had Mr Tshuma recorded observations on Patient A following each incident. However, the delay in Patient A s transfer could have put the patient at unnecessary risk of harm. Mr 3 further noted that, based on the accounts of Ms 1 and Mr 2, while Mr Tshuma eventually made the correct observations, these had not been made at an early enough stage and would have needed to have been taken frequently. The panel further heard evidence from Mr 4, who verified the contents of the written statements that he had provided to the NMC. Submissions In her submissions, Ms Akande invited the panel to take the view that Mr Tshuma s actions amount to a breach of The code: Standards of conduct, performance and ethics for nurses and midwives 2008 and The Code: Professional standards of practice and behaviour for nurses and midwives 2015 (The Code). She then identified where, in the NMC s view, Mr Tshuma s actions amounted to misconduct, namely the preamble and paragraphs 1, 4, 21, 24, 26, 28, 35, 42, 49 and 61 of the 2008 Code, and paragraphs 20.1, 20.4, 20.8 and 21.3 under the section 17

18 promote professionalism and trust of the 2015 Code. She clarified that she was not asking the panel to make a finding on whether Mr Tshuma had actually broken any laws. She submitted that it was incumbent upon Mr Tshuma not to break the laws of the country and that it was fraudulent for him to have obtained and received monies dishonestly. She invited the panel to come to its own view in respect of this issue in respect of paragraphs 49 and 20.4 of the Codes. Ms Akande referred the panel to the case of Roylance v GMC (No. 2) [2000] 1 AC 311 which defines misconduct as a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. She then moved on 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 profession and in the NMC as a regulatory body. She referred to the evidence of Mr 3, who had described to the panel what he would have expected of Mr Tshuma in the circumstances surrounding the incidents with Patient A. Ms Akande submitted that Mr Tshuma had neglected his duty of care to Patient A by not reacting immediately to the patient s presentation and the concerns expressed by the healthcare assistants. Mr Tshuma should have called a doctor immediately but failed even to keep Patient A under observation. Furthermore, by failing to keep proper records, Mr Tshuma had put Patient A at risk of further harm as records are used as an essential communication tool amongst clinicians and impact upon the continuity of care for patients. In respect of Mr Tshuma s dishonest behaviour, Ms Akande submitted that this had undermined public confidence in the nursing profession and was aggravated by the fact that it took place over a prolonged period of time and did not involve a one-off incident of dishonesty. It was premeditated. At the time, he was on medically certified sickness leave from the Trust and had received monies from the public purse. 18

19 Ms Akande next addressed the panel on whether Mr Tshuma s misconduct was remediable, whether he had remediated it, and it was likely to be repeated. She submitted that Mr Tshuma had put Patient A at risk of harm and that he had breached one or more of the fundamental tenets of the profession and had acted dishonestly. Mr Tshuma s behaviour cut across numerous areas of his practice, including: failure to escalate an incident, patient care, record keeping errors and integrity. She referred the panel to Mr Tshuma s reflective pieces addressing the charges and his underlying personal circumstances at the time of the events in question. Ms Akande submitted that Mr Tshuma s clinical failings may be remediable. He has reflected on these and expressed remorse for his actions. Mr Tshuma has not, however, worked as a registered nurse since leaving the Trust in October 2015 and has not provided any evidence of having received further training. It was Ms Akande s submission that Mr Tshuma s dishonesty is typically very difficult to remediate. As Mr Tshuma does not appear to have remediated his failings, there would be a continuing risk of harm to the public and a risk of repetition of the offending behaviour if he were to be allowed to practise as a nurse unrestricted. Ms Akande 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 submitted that all four limbs of the Shipman test referred to in Grant (outlined below) were engaged in this matter. She concluded by inviting the panel to make a finding of impairment in this case on the grounds of public protection and that it would otherwise be in the public interest. She submitted that there was a need to uphold the standards of the profession and that public confidence would be undermined if Mr Tshuma were found not to be impaired. The panel noted that Mr Tshuma s returned Case Management form indicated that he admitted that his fitness to practise is impaired by reason of his misconduct. 19

20 The panel has accepted the advice of the legal assessor, who referred to a number of judgments that are relevant, including: Nandi v GMC [2004] EWHC 2317 (Admin); Mallon v GMC [2007] CSIH 17; Holton v GMC [2006] EWHC 2960 (Admin); Meadow v GMC [2007] QB 462; Cohen v GMC [2008] EWHC 581 (Admin); CHRE v (1) NMC (2) Grant [2011] EWHC 927 (Admin); RA v Sharma [2010] EWHC 2022 (Admin); Parkinson v NMC [2010] EWHC 1898 (Admin). The panel adopted a two-stage process in its consideration, as advised. First, the panel must determine whether the facts found proved amount to misconduct. Secondly, only if the facts found proved amount to misconduct, the panel must decide whether, in all the circumstances, Mr Tshuma s fitness to practise is currently impaired as a result of that misconduct. Decision on misconduct When determining whether the facts found proved amount to misconduct the panel had regard to the terms of the Code (2008 and 2015), and all the oral and documentary evidence in this case. The panel, in reaching its decision, had regard to the public interest and accepted that there was no burden or standard of proof at this stage and exercised its own professional judgement. The panel concluded that Mr Tshuma s actions did fall significantly short of the standards expected of a registered nurse, and that his actions amounted to a breach of the Code (2008 and 2015). Specifically: Charge 1 engages: 20

21 work with others to protect and promote the health and wellbeing of those in your care, their families and carers, and the wider community provide a high standard of practice and care at all times be open and honest, act with integrity and uphold the reputation of your profession. 24. You must work cooperatively within teams and respect the skills, expertise and contributions of your colleagues. 26. You must consult and take advice from colleagues when appropriate. 28. You must make a referral to another practitioner when it is in the best interests of someone in your care. 35. You must deliver care based on the best available evidence or best practice. 42. You must keep clear and accurate records of the discussions you have, the assessment you make, the treatment and medicines you give, and how effective these have been. 43. You must complete records as soon as possible after an event has occurred. 61. You must uphold the reputation of your profession at all times. Charges 2, 3, 4, 5, 6 engage: (The Code 2008) 20.1 keep to and uphold the standards and values set out in the Code 20.2 act with honesty and integrity at all times, treating people fairly and without discrimination, bullying or harassment (The Code 2015) Charges 4, 5, 6 also engage: 21

22 21.3 act with honesty and integrity in any financial dealings you have with everyone you have a professional relationship with, including people in your care (The Code 2015) The panel appreciated that breaches of the Code do not automatically result in a finding of misconduct. However, the panel considered that Mr Tshuma placed Patient A at serious risk of harm by not taking the appropriate action in response to his condition and not keeping proper records. Mr Tshuma also failed to pay attention to the concerns raised by his colleagues. Mr Tshuma acted dishonestly during the Trust investigations into the incident involving Patient A. Mr Tshuma further acted dishonestly by working extensively for other employers shortly after being signed off sick from work by the Trust. The panel found that Mr Tshuma s actions fell seriously short of the conduct and standards expected of a nurse and amounted to misconduct. Decision on impairment The panel next went on to decide if as a result of this misconduct, Mr Tshuma s 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 judgment 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: 22

23 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 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 23

24 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. In reaching its decision, the panel took into consideration that, in respect of Mr Tshuma s clinical failings, this was a single incident that took place during a single shift. This panel has seen no evidence of any other errors or incidents that Mr Tshuma may have been involved in. It has had regard, however, to the fact that Mr Tshuma placed Patient A at serious risk of harm by his repeated failure to take appropriate action and that he did not pay attention to the serious concerns of Ms 1 and Mr 2 who were also involved in Patient A s care. The panel took into account the fact that Mr Tshuma committed multiple dishonest acts over a long period of time. In being dishonest during the investigation into the incident involving Patient A, Mr Tshuma was trying to cover up his failings. With regard to working elsewhere while on sick leave from the Trust, the panel did not have any evidence before it to suggest that Mr Tshuma had been motivated by anything other than financial gain. Regarding insight, the panel noted that Mr Tshuma made admissions in respect of all the charges and considered that he has expressed remorse for his actions. It noted the contents of his reflective pieces, which it considered showed limited insight. The panel considered that his clinical failings are remediable, but he has not worked as a registered nurse since October 2015, and the panel has no evidence as to whether he may have worked within the healthcare sector in a different capacity. Furthermore, Mr Tshuma does not appear to have undertaken any relevant training, and he has only done limited reading in this regard. The panel has no evidence before it to demonstrate that Mr Tshuma has remediated his practice. 24

25 The panel took the view that dishonesty relates to attitudinal issues that are not easily remediable and that the fraudulent acts took place over a prolonged period of time, indicating a systemic issue. Mr Tshuma states in his reflective piece that he did not intentionally try to financially gain from sick pay, PRIVATE. The panel found this unconvincing, given that PRIVATE by that time, Mr Tshuma had been working whilst on sick leave for some time. The panel is of the view that there is a real risk of repetition based on the seriousness of the clinical failings, the lack of remediation and the length of time during which the dishonest acts took place. The panel therefore decided that a finding of impairment is necessary 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. This is necessary to declare and uphold proper standards and maintain public confidence in the profession. Having regard to all of the above, the panel was satisfied that Mr Tshuma s fitness to practise is currently impaired. Determination on sanction The panel heard submissions from Ms Akande in relation to the appropriate sanction in this matter. Ms Akande submitted that the appropriate sanction was a matter for the 25

26 panel s judgment and drew the panel s attention to what she submitted were the aggravating and mitigating factors in the case. The panel has considered this case very carefully and has decided to make a strikingoff order that will direct the registrar to strike Mr Tshuma off the register. The effect of this order is that the NMC register will show that Mr Tshuma has been struck off. 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, who referred to the following cases: CHRE v NMC and Leeper, [2004] EWHC 1850 (Admin); Parkinson v NMC [2010] EWHC 1898 (Admin); Moijueh v NMC [2015] EWHC 1999 (Admin). The panel has had at the forefront of its considerations 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 Sanctions Guidance ( SG ) published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. The panel had regard to the aggravating and mitigating factors in this case, which it determined to be as follows: Aggravating: - failing to respond to repeated concerns being raised by the healthcare assistants in respect of Patient A - there were two different types of dishonest acts - the dishonesty in respect of working whilst also claiming sick pay was motivated by financial gain and was repeated and prolonged. There were more than 120 occasions involving many thousands of pounds over a period of some 18 months. 26

27 Mitigating: - the clinical failure concerns a single incident during a single shift - full admissions have been made to the NMC charges - some remorse has been shown, albeit at a late stage The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of the case. Next, in considering whether a caution order would be appropriate in the circumstances, the panel took into account the SG, 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 Mr Tshuma s 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 multiple, prolonged dishonest acts, the risk of harm to Patient A and the lack of remediation. 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 Mr Tshuma s registration would be a sufficient and appropriate response. The panel was mindful that any conditions imposed must be proportionate, measurable and workable. The panel considered those factors in the SG which indicated when a conditions of practice order may be appropriate, in particular: no evidence of harmful deep-seated personality or attitudinal problems identifiable areas of the nurse or midwife s practice in need of assessment and/or retraining no evidence of general incompetence potential and willingness to respond positively to retraining 27

28 patients will not be put in danger either directly or indirectly as a result of conditional registration the conditions will protect patients during the period they are in force it is possible to formulate conditions and to make provision as to how conditions will be monitored The panel is of the view that these factors do not apply in this case. In respect of the clinical issues, the panel had no information before it to indicate whether Mr Tshuma would be willing and able to comply with appropriate conditions. In any event, given the nature of the charges in respect of dishonesty, the panel is of the view that there are no appropriate, practical or workable conditions that could be formulated. The dishonesty identified in this case, particularly the element relating to financial gain, is not something that can be addressed through retraining. The panel then went on to consider whether a suspension order would be an appropriate sanction. The SG indicates that a suspension order would be appropriate where (but not limited to): 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 Committee is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour The panel took into account the aggravating factors in this case as detailed above, particularly the fact that there were two different types of dishonesty committed, and the prolonged nature of the dishonest acts relating to financial gain, indicating deep-seated attitudinal problems. It also had regard to Mr Tshuma s apparently limited insight into his failings as demonstrated in his reflective pieces. The conduct, as highlighted by the facts found proved, was a significant departure from the standards expected of a registered nurse. The serious breach of the fundamental 28

29 tenets of the profession evidenced by Mr Tshuma s actions may be fundamentally incompatible with him remaining on the register. The panel has taken into account the reflective pieces put forward by Mr Tshuma, as noted above, and the fact that he has admitted to all the NMC charges, which is to his credit. However, in this particular case, balancing all these factors, the panel determined that a suspension order would not be a sufficient, appropriate or proportionate sanction. The panel then went on to consider further the guidance in the SG on the seriousness of dishonesty, and noted that the forms of dishonesty that are most likely to call into question whether a nurse or midwife should be allowed to remain on the register include: deliberate dishonesty to conceal clinical issues, particularly those causing harm to patients personal financial gain from a breach of trust premeditated, systematic or longstanding deception The panel found that all these forms of dishonesty were engaged in this case. It is of particular concern that the dishonesty involving working elsewhere whilst in receipt of sick pay by the Trust was persistent in that it took place on more than 120 occasions over a period of some 18 months. The panel concluded that Mr Tshuma s misconduct was a very significant departure from the standards expected of a registered nurse, and is fundamentally incompatible with Mr Tshuma remaining on the register. The panel is of the view that the findings in this case demonstrate that Mr Tshuma s misconduct was so serious that to allow him to continue practising would undermine public confidence in the profession and in the NMC as a regulatory body. 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 29

30 is that of a striking-off order. Having regard to the matters it identified, in particular the effect of Mr Tshuma s actions in bringing the profession into disrepute by adversely affecting the public s view of how a registered nurse should conduct himself, 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 personal conduct behaviour required of a registered nurse. Determination on Interim Order The panel has considered the submissions made by Ms Akande that an interim suspension order should be made for the period of 18 months to cover the 28-day appeal period and the period of any appeal. This was on the grounds that it is necessary for the protection of the public and is otherwise in the public interest, and that it would be consistent with the panel s substantive decision. The panel accepted the advice of the legal assessor. The panel was not satisfied that an interim suspension order is necessary for the protection of the public, nor that it would otherwise be in the public interest. In conducting its assessment of the matter, the panel noted Mr Tshuma s reflective pieces, which demonstrate some insight and understanding of the errors he made with regard to the clinical incident. The panel considered that, as Mr Tshuma s clinical failings were restricted to a single incident during a single shift, there is no evidence that would suggest a realistic likelihood of repetition of this clinical error, or that there is a real risk of significant harm to the public by other clinical errors, should an interim order not be made. The panel did not consider that the charges in respect of dishonest pay 30

31 claims or dishonesty in respect of an internal investigation posed a risk to the public, as the matters concerned were administrative and financial. In considering the public interest, the panel held the view that, as this case involves financial irregularity rather than clinical misconduct or significant patient harm, there was no public interest in denying Mr Tshuma the benefit of Article 29(11) of the Nursing and Midwifery Order (2001), which states: No order mentioned in paragraph (9) shall have effect (a) before the expiry of the period within which an appeal against the order may be made; or (b) where an appeal against the order has been made, before the appeal is withdrawn or otherwise finally disposed of. The panel considered that, had the charges in this matter been confined to Mr Tshuma s clinical failings, it would not have imposed the substantive striking-off order. The decision, therefore, to not impose an interim order is not incompatible with the panel s earlier findings in respect of risk to the public. Incompatibility is a matter to be taken into account, but it cannot be an overriding matter, given the provisions of Article 29(11), which prevent a striking-off order from taking an immediate effect. The panel is aware that the threshold for an interim order to be imposed solely on the grounds that it is in the public interest is high. In the circumstances of this case the panel concluded that the high threshold has not been met. The panel has therefore decided that it is not necessary in the circumstances to impose an interim order. If no appeal is brought, then the striking-off order will take effect 28 days after Mr Tshuma is served with notice of the decision of this hearing in writing. That concludes this determination. 31

32 32