Conduct and Competence Committee Substantive Hearing 2 3 March 2017 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE

Transcription

1 Conduct and Competence Committee Substantive Hearing 2 3 March 2017 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of Registrant Nurse: Christy George NMC PIN: 03J0269O Part(s) of the register: Registered Nurse Sub Part 1 Adult Nursing Level 1 7 October 2003 Area of Registered Address: England Type of Case: Conviction Panel Members: Sara Nathan (Chair - Lay member) Stella Armstrong (Registrant member) Linda Nixon (Lay member) Legal Assessor: John Bassett Panel Secretary: Zara Raza Ms George: Represented by Dominic Hockley, Counsel, Atkinson Bevan Chambers. Ms George not present but participating by telephone link and video conferencing Nursing and Midwifery Council: Represented by Derek Zeitlin, Counsel, instructed by the Nursing and Midwifery Council (NMC) Regulatory Legal Team. Facts proved by admission: Facts not proved: ALL n/a Fitness to practise: Sanction: Interim Order: Impaired Striking-Off Order Interim Suspension Order 18 months 1

2 Charges: That you, a registered nurse: 1. On 20 June 2016, at Leicester Crown Court, were convicted of: a. Causing death by dangerous driving contrary to section 1 of the Road Traffic Act 1988; b. Aiding/abetting the cause of serious injury by dangerous driving contrary to section 1A of the Road Traffic Act 1988; c. Causing death by driving while uninsured contrary to section 3ZB of the Road Traffic Act 1988; and d. Committing an act/series of acts with intent to pervert the course of justice contrary to common law. 2. On 5 December 2012 at Nottingham Magistrates Court were convicted of driving without due care and attention contrary to section 3 of the Road Traffic Act 1988 and schedule 2 of the Road Traffic Offenders Act And in light of the above your fitness to practise is impaired by reason of your convictions. 2

3 Background: At the time of this incident, Miss George had been working as a Registered Nurse at the Nottingham University Hospital Trust ( the Trust ) and in addition doing some agency shifts. The NMC received a self-referral from Ms George on 23 August She reported a police investigation that she was involved in relating to a road accident which occurred on 25 November 2014 whilst driving to work as an agency nurse. Ms George was driving on the M1 and lost control of her car while attempting to overtake a heavy goods vehicle (HGV) at nearly 70mph. Ms George s car struck the HGV, causing the HGV to cross the central reservation and strike another car, whose occupant suffered fatal injuries. The HGV continued to drive on the wrong side of the motorway, and struck six other vehicles, and further injuries were sustained by other occupants, including one who suffered a broken neck and a brain injury. During a Police interview on 18 April 2015, Ms George admitted to using her mobile phone on at least three occasions whilst driving. She accepted that in order to make the calls she had to look at her mobile phone which was on the passenger seat of her car which meant that she did not have her eyes on the road whilst driving she lost control of her car as a result. She also admitted to deleting the call list from her mobile phone whilst trapped in her car after the accident. When asked about the insurance cover on her vehicle she stated that she had fully comprehensive insurance. Ms George was advised that the Police National Computer showed that she had cover for Social, Domestic and Pleasure and that it also showed that she had an exclusion for commuting. Ms George stated that as far as she was aware, she had fully comprehensive insurance and that she would never have a policy of insurance that excluded her from commuting. However, it transpired that she was not covered for driving to work as an agency nurse. 3

4 Ms George was charged with criminal offences arising out of the accident and first appeared at Leicester Magistrates Court on 21 August Ms George s case was committed to the Crown Court at Leicester where, on 20 June 2016, she was convicted of the following offences: Count 1 - Causing death by dangerous driving contrary to section 1 of the Road Traffic Act 1988; Count 2 - Aiding/abetting the cause of serious injury by dangerous driving contrary to section 1A of the Road Traffic Act 1988; Count 3 - Causing death by driving while uninsured contrary to section 3ZB of the Road Traffic Act 1988; and Count 4 - Committing an act/series of acts with intent to pervert the course of justice contrary to common law. The panel was told that Ms George admitted to driving carelessly but not dangerously. She also admitted driving without insurance. However, the jury found that she had been driving dangerously and she was convicted of all of the above offences. On 15 July 2016 Ms George was sentenced as follows: Count 1 Imprisonment 5 years and disqualified from driving for 10 years and being required to take an extended driving test. Count 2 Imprisonment 3 years concurrent Count 3 Imprisonment 9 months concurrent Count 4 Imprisonment 9 months concurrent Ms George is currently serving a 5 year prison sentence. 4

5 Ms George was also involved in a previous driving incident which occurred on 18 June Ms George was seen reversing off her driveway at approximately 5mph when she collided with a 6/7 year old boy on the pavement who subsequently went under the vehicle. The Police and ambulance were called. One witness said she saw Ms George just after the incident with her mobile in her hand. Ms George denied being on her mobile phone at the time the incident occurred and said that she had rung emergency services whilst in the vehicle but disconnected the call after her husband told her that somebody had already rung emergency services. The boy was taken to the Emergency Department and sustained a broken right collar bone and multiple grazes to the right arm, sacrum, pelvic rim, leg and back. He was kept under observation in the Emergency Department for two hours and then reviewed and discharged with a referral to the Fracture Clinic. Ms George was convicted on 5 December 2012 at Nottingham Magistrates Court of driving without due care and attention contrary to section 3 of the Road Traffic Act 1988 and schedule 2 of the Road Traffic Offenders Act Decision on the facts: When the charges were read out, Mr Hockley, on behalf of Ms George, admitted all of the charges. Accordingly, the panel found all of the charges proved by way of admission. Decision on impairment: The panel next went on to consider if, as a result her convictions, Ms George s fitness to practise is currently impaired. Whilst there is no statutory definition of fitness to practise, the NMC has defined fitness to practise as a registrant s suitability to remain on the register without restriction. 5

6 The panel had regard to all the evidence before it. The panel also had regard to the submissions of Mr Zeitlin, on behalf of the NMC and Mr Hockley, on behalf of Ms George, who was not present but participating by telephone. The panel saw the certificate of conviction dated 21 September 2016 for the 2014 offences and a Memorandum of Entry of the Nottingham and Newark Magistrates Court dated 5 December 2012 for the 2012 offences, which set out the charges and sentencing in this case. The panel also saw the police reports, witness statements and transcripts of police interview with Ms George. The panel also had sight of the Crown Court sentencing remarks for the 2016 offences. The panel had also been provided with a reflective statement from Ms George, her curriculum vitae and a number of positive references from her employer and colleagues at the Trust. The panel heard and accepted the legal assessor s advice. In deciding the issue of current impairment, the panel noted that there is no standard or burden of proof and that it must exercise its own independent judgement. 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. Nurses occupy a position of privilege and trust in society and are expected at all times to uphold the reputation of the profession. 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 6

7 the judgement of Mrs Justice Cox in the case of CHRE and NMC and Grant [2011] EWHC 927 (Admin) in reaching its decision, in paragraph 74 she said; 74. 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: 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. b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or c. d. 7

8 When considering whether Ms George s fitness to practise is currently impaired, the panel had regard to the seriousness of her convictions. The panel considered the second limb of the Grant test to be engaged in this case. In relation to the second limb, the panel considered that serious criminal behaviour of this kind, particularly from someone in a position of trust and responsibility, was inherently likely to bring the profession into disrepute and had done so in this case. The panel therefore concluded that Ms George s fitness to practise had been impaired at the times of the convictions. The panel took into account that the charges in this case do not relate to Ms George s clinical practice. To the contrary, the panel had positive references before it attesting to Ms George being a highly regarded nurse. The panel therefore decided that Ms George s fitness to practise was impaired on public interest grounds. The panel then went onto consider whether Ms George s fitness to practise remains impaired by reason of her convictions. The panel considered that criminal behaviour of this kind is in theory capable of being remedied. The panel took into account that Ms George is currently serving a five year custodial sentence. It is less than a year since her conviction in relation to the 2014 offences. The panel had regard to Mr Zeitlin s submissions in reference to the case of CHRE v (1) GDC and (2) Fleischmann [2005] EWHC 87 (Admin) in which Mr Justice Newman said 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 8

9 whilst serving his sentence, but that good standing in a profession must be earned if the reputation of the profession is to be maintained In a reflective statement, Ms George said: I am genuinely and sincerely sorry for all the pain and grief I have caused to my victims and their family. I take full responsibility of my actions and I cannot possibly imagine what they are going through. My reckless behaviour has caused all this and I know my apology will not make any difference to anyone now. I accept complete responsibility of my actions in causing the accident During the trial I have learned the details of the accident time scale and realised the dangerous nature of my actions on that day. I have stopped driving after the accident and I have no intention to take up driving ever again. While in prison I have completed a victim awareness booklet and apologised to victim and family through my solicitors. I have also put forward my name to complete a thinking skills programme while serving my time. I understand the detrimental effects of my conviction on the profession and how the public perception on me and the nursing profession is affected. I am fully aware how my convictions and custodial sentence has affected the dignity of the profession and I m genuinely sorry about it. The panel also noted that Ms George pleaded guilty to causing death by careless driving at the Crown Court although she contested and was convicted of causing death by dangerous driving. She recognised in these proceedings that her fitness to practise is impaired. 9

10 The panel considered that all this demonstrated a degree of remorse and some insight. However, the panel considered that this insight was not sufficient to address the significant public interest in this case requiring a finding of impairment. The panel concluded that Ms George s fitness to practise is currently impaired by reason of her convictions. It took into account that the charges in this case relate to two separate driving incidents which caused injury to others and, in relation to the 2014 offence, resulted in a death. The panel took into account the sentencing remarks on 15 September 2016, in which the aggravating features included that Ms George had been previously convicted for driving carelessly some 18 months prior to the 2014 incident and must therefore have been aware, by the time of this second incident, of the dangers of using a handheld mobile phone whilst driving. Another aggravating feature that was cited, which the panel found to be particularly serious, was that Ms George, at the time of the 2014 incident, after causing the collision and having come to a stop by a barrier and being trapped in her car, deleted the list of calls she had made whilst driving. The panel considered that in doing so, Ms George had shown an intent to cover up her actions, though this was remedied in her later Police statement, and instead prioritised the potential criminal implications the incident would have had for her. The panel asked itself whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of current impairment of fitness to practise were not made in the circumstances of this case. In the circumstances of criminal behaviour of this severity, the panel had no doubt that it would. Accordingly, the panel decided that Ms George s fitness to practise is currently impaired by reason of her convictions. 10

11 Decision on sanction: The panel has considered very carefully the question of what sanction, if any, should be imposed in this case and has decided to make a striking-off order. When considering the issue of sanction the panel had regard to the submissions of Mr Zeitlin and Mr Hockley. The panel also had regard to all the evidence in this case. Mr Zeitlin specifically drew to the panel s attention the recent case of Habib Khan v General Pharmaceutical Council [2011] UKSC 64 which said that a panel should not suspend for one year on the expectation that a reviewing panel will extend the suspension further. Ms George also gave evidence via video link at this stage in proceedings. The panel heard and accepted the advice of the legal assessor who directed the panel to the NMC s Indicative Sanctions Guidance (ISG) and advised that the purpose of sanction is the protection of patients and the public interest. The public interest includes maintenance of confidence in the profession and the declaring and upholding of proper standards of conduct and performance. The legal assessor reminded the panel of the case of Fleischmann and the passage already referred to on page 8 of this determination. The panel bore in mind that any sanction imposed must be appropriate and proportionate. The purpose of any sanction is not to be punitive though it may have a punitive effect. The panel had careful regard to the ISG published by the NMC. It recognised that the decision on sanction is a matter for the panel exercising its own independent judgement. The panel took into account the aggravating and mitigating factors. The panel considered the aggravating factors in this case: 11

12 These were serious criminal convictions. Ms George was first convicted in December 2012 for driving without due care and attention. The 2014 offences occurred only some 18 months later. The 2012 matter had involved an injury to a young child and had been caused by Ms George s inattention. This should have brought home to her the need to avoid distractions while driving. The 2014 incident involved a 6-car collision. An individual died as a result of Ms George s actions and the panel was told that another individual is now wheelchair-bound for life. Ms George explained in her evidence that her attention was diverted from the road for one second. What was said to be the momentary lapse of attention that resulted in the fatal accident had to be considered in the context that Ms George drove on to the M1 while already using her mobile telephone; she had made three separate telephone calls; and had been on the telephone for 15 of the 21 minutes she spent on the M1 before this accident. Further, Ms George had been overtaking a HGV lorry at almost 70mph whilst on the telephone immediately before the accident, and was described by one witness as swaying from left to right. The panel agreed with the Judge s sentencing remarks at the Crown Court trial that Ms George s actions amounted to gross avoidable distraction. Ms George, as a Registered Nurse, has had experience of working on an Intensive Care Unit and explained in her evidence that she has cared for patients who have suffered from critical injuries following car accidents. The panel therefore considered that, given this, the consequences of driving dangerously should have been all the more apparent to Ms George. The panel considered the mitigating factors in this case: Ms George has engaged with the criminal proceedings and these regulatory proceedings. 12

13 Ms George in her reflective statement and more so in her oral evidence, demonstrated genuine remorse and some insight into the wider impact of her actions. Ms George is currently serving a five year custodial sentence. The panel heard information as to the significant personal and financial impact Ms George s actions have had upon her and her family. The panel received positive references from Ms George s previous colleagues at the Trust who attested to her being a highly regarded nurse and that there were no concerns with her clinical practice. These references were from colleagues of varying levels of seniority and were made in full knowledge of the charges in this case. The panel also acknowledged Ms George s guilty plea at the Crown Court to causing death by careless driving and driving without insurance, although she contested and was convicted of causing death by dangerous driving. Ms George recognised in these proceedings that her fitness to practise is impaired. The panel, in its findings on impairment, recognised that this demonstrated some degree of remorse and insight. However, the panel concluded that the aggravating features in this case surrounding the severity of Ms George s convictions outweighed the mitigating features. The panel bore in mind that any sanction imposed must be reasonable, appropriate and proportionate. The panel considered whether to take no action. It concluded that this would be inappropriate in view of the serious nature of the convictions. To impose no sanction would allow Ms George to practise as a registered nurse without restriction. This would not serve the public interest in declaring and upholding proper professional standards and maintaining public confidence in the profession. The panel concluded that this would be manifestly inadequate and wholly inappropriate in this case. 13

14 For the same reasons, the panel considered that a caution order would be inappropriate. The panel considered whether placing conditions of practice on Ms George 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 took into account the references it had received that attested to Ms George s high standard of clinical practice. The panel concluded that conditions of practice would not be appropriate. The panel took into account that Ms George s convictions did not relate to her clinical practice, which was said to be excellent. The panel also considered that such an order would be insufficient and inappropriate to mark the seriousness of the convictions. The panel considered whether a suspension order would be an appropriate sanction. It took into account the following sections of the ISG regarding the making of a suspension order: Key considerations 66.1 Does the seriousness of the case require temporary removal from the register? 66.2 Will a period of suspension be sufficient to protect patients and the public interest? 68 This sanction may be appropriate where the misconduct is not fundamentally incompatible with continuing to be a registered nurse or midwife in that the public interest can be satisfied by a less severe outcome than permanent removal from the register. This is more likely to be the case when some or all of the following factors are apparent (this list is not exhaustive): 14

15 68.1 A single instance of misconduct but where a lesser sanction is not sufficient No evidence of harmful deep-seated personality or attitudinal problems No evidence of repetition of behaviour since the incident The panel is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour. In considering whether a suspension order is appropriate in this case, the panel carefully considered the able submissions made on behalf of Ms George, by Mr Hockley. Mr Hockley had helpfully summarised those submissions in writing. He properly and candidly accepted that the only possible sanctions in this case were a suspension order for 12 months (the maximum that can be imposed), which he urged the panel to impose, or a striking off order. As such, it cannot be disputed that the key consideration in paragraph 66.1 of the ISG is met, in the sense that, this is a case where at least temporary removal is required. As reminded by Mr Hockley and following the decision in NMC v O [2015] EWHC 2949, the panel took full account of the mitigating factors at this stage and, in particular, noted that Ms George has already been the subject of an interim suspension order since August The panel also carefully considered the case of Festus Osaze Isagehi v NMC [2014] EWHC 127 (Admin) that Mr Hockley referred to but noted, as he accepted, that each case is fact sensitive. This is apparent by comparing the decision in Isagehi with the decision in the case of Crabbie v GMC [2002] 1WLR 3104 to which Mr Zeitlin referred in his submissions. One distinguishing fact that stands out in Isagehi is that the registrant in that case had completed his rather shorter prison sentence before he appeared before the Conduct and Competence Committee. Therefore, it might be said that in Isagehi the general principle referred to in the case of Fleischmann no longer applied. The panel accepted Mr Zeitlin s submission that the Fleischmann principle meant that Ms George should not resume her nursing practice until she has 15

16 satisfactorily completed her prison sentence, and that there is no proper reason for departing from that principle in this case. In all the circumstances, the panel concluded that this is not a case in which a suspension order would be sufficient, proportionate or appropriate. The panel took into account that Ms George is currently serving a five year custodial sentence. Even with full remission, her earliest release date will be March She will then be out on license for the next two and a half years. The panel also gave weight to the fact that her conviction for the 2014 offence followed a 2012 conviction for driving without due care and attention. Further, the 2014 offence itself occurred whilst Ms George was overtaking a HGV lorry at nearly 70mph whilst being on the telephone for 15 minutes of the 21 minutes she was driving on the M1. Just before the collision occurred, Ms George was witnessed swerving on the motorway. Whilst the panel did not identify a deep-seated attitudinal problem, it was concerned by the fact that at the Crown Court, Ms George had not recognised her driving had been dangerous as opposed to careless. As already described, the panel took into account that Ms George had been on the telephone on three separate phone calls for a total of 15 minutes before the collision occurred. However, Ms George in her evidence said that it was her actions in one second that caused the collision. Whilst the panel regarded Ms George s remorse as genuine, the panel considered this to demonstrate a lack of a full and proper understanding of her actions. The panel considered that Ms George s convictions were fundamentally incompatible with her continued registration, and that a suspension order would not be sufficient to meet the public interest considerations in this case. As such, the panel did not consider that the key consideration in paragraph 66.2 of the ISG is met in this case The panel then considered whether a striking off order would be an appropriate sanction and bore in mind the relevant provisions of the ISG regarding those factors which could properly result in the making of a striking off order. 16

17 In applying the principle of proportionality, the panel had regard to the positive evidence it had heard in relation to Ms George being a highly regarded nurse. Further, the panel considered Ms George s evidence to be compelling in relation to her commitment to the nursing profession, what she has learnt from these incidents and how it can assist her in any future nursing practice. While the panel recognised that there is a public interest consideration in regaining the services of a good nurse when she has finished serving her prison sentence, this needs to be balanced against the severity of the offences in this case. Ms George s convictions for serious offences resulting from conscious behaviour that could foreseeably have resulted and, in fact, did result in harm to others, is incompatible with her being a Registered Nurse. In all the circumstances, the panel concluded that Ms George s convictions make a striking off order the only sanction that would adequately reflect the gravity of these offences and satisfy the public interest in maintaining the standards of the profession and upholding public confidence in the profession and the NMC as its regulator. Accordingly, the panel made an order directing the Registrar to strike Ms George off the Register. Ms George may apply for restoration five years after the date that this decision takes effect. 17

18 Determination on Interim Order: The panel has considered all the information before it including the submissions made by Mr Zeitlin and Mr Hockley. Mr Zeitlin submitted that an interim order should be made on the grounds that it is in the public interest. He submitted that given the panel s determination on impairment and sanction, an interim suspension order should be imposed for 18 months to cover the 28 day period following notification of this decision, in which an appeal can be made, and thereafter to cover the period until any such appeal is determined. Mr Hockley did not oppose the application. The panel heard and accepted the advice of the legal assessor, who referred the panel to its powers under Article 31 of the Nursing and Midwifery Order 2001 and to the NMC s published guidance to panels considering whether to make an interim order. Article 31 of the Nursing and Midwifery Order 2001 outlines the criteria for imposing an interim order. The panel may only make an interim order if it is satisfied that it is necessary for the protection of the public; that it is otherwise in the public interest; and/or that it is in the registrant s own interest. The panel had regard to the circumstances of the case and the reasons set out in the decision for the striking-off order. The panel considered that an interim order is necessary in this case to satisfy the wider public interest, including the need to declare and maintain proper standards and maintain public confidence in the profession and in the NMC as a regulatory body. Not to make an interim order would be incompatible with the panel s earlier findings. For all the reasons set out in the panel s determination thus far, the panel has decided that an interim suspension order would be appropriate. In all the circumstances of this 18

19 case, the panel determined that a suspension order is necessary to satisfy the wider public interest. The panel considered that the order should run for a period of 18 months in order to allow for any appeal process, and that such an order is both appropriate and proportionate following its decision on sanction to impose a striking-off order. If at the end of the appeal period of 28 days, Ms George has not lodged an appeal, the interim order will lapse and be replaced by the substantive order. On the other hand, if Ms George does lodge an appeal, the interim order will continue to run until the conclusion of the appeal. That concludes this determination. 19