Nursing and Midwifery Council:

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1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing April 2018 Nursing and Midwifery Council, 2 Stratford Place, London, E20 1EJ Name of Registrant: NMC PIN: Valentin Cristian Sbranca 14I0534C Part(s) of the register: RN1, Registered Nurse (sub part 1) Adult (26 September 2014) Area of Registered Address: Type of Case: Panel Members: Legal Assessor: England Misconduct Paul Powici (Chair, Lay Member) Sophie Kane (Registrant Member) Susan Tokley (Registrant Member) Barrie Searle Panel Secretary: Richard Webb (16-20 April 2018) Jonathan Storey (23 April 2018) Representation Nursing and Midwifery Council: Registrant: Facts proved: Facts not proved: Fitness to practise: Sanction: Interim order: Represented by Kim Elcoate May, Case Presenter Present by telephone during part of the hearing All N/A Impaired Striking-off order Interim suspension order (18 months) Page 1 of 26

2 Decision on service of notice of hearing: The panel was informed at the start of this hearing that Mr Sbranca was not in attendance. Written notice of this hearing had been sent to his registered address, as recorded on the Nursing and Midwifery Council (NMC) s database, by recorded delivery and by first class post on 15 March Notice was also sent on the same date to an alternative UK address which had been provided to the NMC by Mr Sbranca. The NMC had been in recent correspondence with Mr Sbranca who had confirmed he was aware of the hearing and that he was currently residing in Romania although he has not officially updated the NMC with his new address. The panel accepted the advice of the legal assessor. In light of all of the information available, the panel was satisfied that Mr Sbranca had been served with notice of this hearing in accordance with the requirements of Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the NMC Rules ). Decision on proceeding in the absence of the registrant: Ms Elcoate May, acting on behalf of the NMC, invited the panel to proceed in the absence of Mr Sbranca. The panel was provided with correspondence between Mr Sbranca and the NMC leading to the hearing today. Mr Sbranca is currently living in Romania. Mr Sbranca signed a response to the charges form on 5 April 2018 and, in an sent to the NMC on 13 April 2018, stated that he would attend the hearing only on the 23 April 2018, which is the final day listed for this hearing. Mr Sbranca was contacted by telephone by the panel secretary, legal assessor and case presenter. Mr Sbranca stated that he was able to attend on 23 April 2018 but was not able to attend the hearing in person for the duration due to financial reasons. He stated that he wished to make a statement by telephone following the closing of the NMC s case. He stated that he did not want to participate during the evidence of the NMC witnesses. Page 2 of 26

3 The panel accepted the advice of the legal assessor. The panel noted that its discretionary power to proceed in the absence of the registrant under the provisions of Rule 21 of the NMC Rules should be exercised with the utmost care and caution as set out in R v Jones (2009) EWCA Crim 168. The panel bore in mind that Mr Sbranca had given clear indication that he was not able to attend in person, has not requested an adjournment and has stated that he wished to contribute by telephone at a later stage of the hearing. The panel also took into account that Mr Sbranca has provided written responses to the charges to be considered by the panel. The panel also took into account the public interest in the expeditious disposal of the case. In these circumstances, the panel concluded that it would be fair, appropriate and proportionate to proceed initially in the absence of Mr Sbranca and to contact him by telephone at the stage he has stated he wishes to participate. The panel determined to draw no adverse inference from his absence at this hearing. Charges: That you, a Registered Nurse, while working at Hull Royal Infirmary: 1) On 25 July 2015, attempted to awaken Patient A by grasping him by the shoulders and shaking him. 2) On or around 10 August 2015: a) In relation to Patient C who was marked as nil by mouth and whom you had been directly told was nil by mouth : i) Fed pureed food to Patient C. ii) Continued to feed Patient C despite the fact she was coughing and spluttering and food was sitting in her mouth. Page 3 of 26

4 b) During your shift, while giving patient care: i) On more than one occasion muttered shit under your breath. ii) Appeared angry and/or stressed and/or disinterested. 3) On 24 September 2015, in relation to Patient D, who was on a fluids and puree diet limited to 10 teaspoons per meal; a) Fed Patient D with such a speed and/or force that you were shovelling food into his mouth, giving him no chance to swallow between each spoonful. b) When reminded by Colleague C that Patient D was limited to 10 teaspoons per meal responded in an aggressive manner and said words to the effect of I know what I am doing, don t treat me like an idiot. 4) On or around 28 August 2015, while working with Colleague D to provide care to Patient B, a dementia patient who had become agitated: a) Attempted to use force to restrain Patient B. b) Refused Colleague D s request that you stop and call a female colleague to assist. c) Stated that you did not need any help from anyone else and that you wanted to sort the job out, or words to that effect. 5) On 21 January 2016, during an appointment in the Occupational Health Service department, behaved in a rude and/or intimidating manner towards Colleague A, in that you: a) Would not sit down despite being asked. Page 4 of 26

5 b) Stood between Colleague A and the door of the treatment room. c) Remained silent and uncommunicative when asked questions and/or spoken to. 6) On 22 January 2016, attended the Occupational Health Service department where you: a) Displayed abusive and intimidating behaviour towards staff members, including swearing at staff. b) Behaved aggressively. c) Continued to swear despite being asked to stop by Colleague B. d) Would not leave until you had been asked on more than one occasion. AND in light of the above, your fitness to practise is impaired by reason of your misconduct. Application to amend the charges: Ms Elcoate May made an application to amend charge 3 to correct a drafting error regarding the date referred to in the charge. The date contained within the charge should be 24 September 2015, as recorded in the NMC witness statements. The date of 11 August 2015 appeared to have been copied from another charge whilst the charges were being drafted. Ms Elcoate May submitted that the proposed amendment would properly reflect the evidence heard and submitted that it would not cause any injustice to Mr Sbranca. The panel accepted the advice of the legal assessor. Page 5 of 26

6 The panel was aware of its power in relation to amending charges which is set out in Rule 28 of the NMC Rules. The panel accepted that the amendment was not one that altered the substance of the charge and was required to correct a drafting error regarding an incorrect date. The panel determined that allowing the amendment would not cause any injustice or unfairness. Accordingly the panel decided to allow the amendment. Application to place a witness statement before the panel: Ms Elcoate May made an application under Rule 31 to place the witness of Ms 5 before the panel. Ms 5 was an Auxiliary Nurse working at Hull Royal Infirmary during the time of the allegations. Ms Elcoate May made the application in private (under Rule 19) as she referred to the health reasons which meant Ms 5 was not able to attend the hearing. The panel was informed that Ms 5 s evidence related to charge 3 and that she is the individual referred to as Colleague C in that charge. The panel was provided with medical evidence dated 9 April 2018 which stated that Ms 5 is unfit to attend the NMC hearing commencing the 16 th April 2018 in the capacity of a witness. The panel accepted the advice of the legal assessor. The evidence of Ms 5 was clearly related to charge 3, Mr Sbranca has provided his responses to this allegation and he has confirmed that he will be present at the hearing by telephone upon conclusion of the NMC s case on the facts. In these circumstances the panel decided to grant the application. In doing so the panel determined to place what weight it deemed appropriate on the evidence before it. Second application to place a witness statement before the panel: Ms Elcoate May made a further application under Rule 31 to place the witness of Ms 6 before the panel. Mr Sbranca had been invited to make any objections to having the Page 6 of 26

7 statement of Ms 6 read at the hearing. Mr Sbranca had been provided with a copy of the statement of Ms 6 who conducted an internal investigation into some of the allegations Mr Sbranca faces. As part of her statement Ms 6 exhibits the interview notes of a meeting she had with Mr Sbranca on 30 November The panel accepted the advice of the legal assessor. The panel bore in mind that Mr Sbranca had been provided with Ms 6 s evidence which included his written amendments and which was to be placed before the panel. In these circumstances the panel decided to grant the application. In doing so the panel determined to place what weight it deemed appropriate on the evidence before it. Application to hear witness evidence by video link: Ms Elcoate May made an application under Rule 31 to hear the evidence of Ms 7 either by telephone or video link. Ms 7 was a Nurse working at Hull Royal Infirmary during the time of the allegations. Ms Elcoate May made the application in private (under Rule 19) as she referred to the health reasons which meant Ms 7 was not able to attend the hearing. The panel was provided with medical evidence dated 23 February 2018 which confirmed Ms 7 s current health condition. The panel was informed that Mr Sbranca had been informed of the application by and also by telephone. In a telephone conversation with the panel secretary, and in the presence of the legal assessor and case presenter, Mr Sbranca was asked if he had any objection to the NMC calling Ms 7 to give evidence by telephone or video link. In response Mr Sbranca stated that he did not care and did not want to hear them [the witnesses] and I don t care what the witnesses do, it s their problem not mine. The panel accepted the advice of the legal assessor. The panel understood the health circumstances which are preventing Ms 7 from attending the hearing in person. Mr Sbranca has provided his responses to this allegation and he has confirmed that he will be present at the hearing by telephone Page 7 of 26

8 upon conclusion of the NMC s case on the facts. He has been informed of the nature of this application and has not made any objection to it. In these circumstances the panel decided to grant the application. In doing so the panel determined to place what weight it deemed appropriate on the evidence before it. The panel was of the view that either telephone or video link was acceptable, depending on which was most convenient to the witness and logistically possible for the NMC. Decision on the facts and reasons: The NMC received a referral on 25 November 2016 from the Nurse Director at the Hull Royal Infirmary (the Hospital), part of the Hull and East Yorkshire Hospitals NHS Trust ( the Trust ). Mr Sbranca was employed as a Band 5 Registered Nurse from 9th February 2015 until his dismissal on 14th March It is alleged that Mr Sbranca attended the Occupational Health Department, Hull Royal Infirmary on 21 January 2016 for a Trust employee routine blood test appointment. It is alleged that Mr Sbranca displayed aggressive and intimidating behaviour towards an Occupational Health Nurse, standing over her whilst she sat in a chair and speaking in an aggressive tone. The Occupational Health Nurse found Mr Sbranca s behaviour intimidating and threatening. It is alleged that on 22nd January 2016 Mr Sbranca went back to the Occupational Health Department and was asked by the Administration Assistant if he had an appointment. It is alleged that Mr Sbranca pointed to a mark on his arm and stated Would you fucking have this? One of your nurses did this. It is further alleged that Mr Sbranca continued to display abusive and intimidating behaviour towards the staff member and behaved aggressively, swearing at the Occupational Health Manager and then called her a fucking bitch when he was asked to leave the Department. The matter was referred to a disciplinary hearing which was held on 14 March Mr Sbranca was dismissed from employment with the Trust with immediate effect. Page 8 of 26

9 Mr Sbranca was also being investigated with regards to the following allegations prior to the incidents at the Occupational Health Department and had been suspended from 5 October 2015: That he vigorously shook a patient by his shoulders in an attempt to wake him up. That he had been rude and insulting to patients in his care. He fed a patient who was Nil by mouth. He failed to assist a work colleague despite numerous requests. He had been rude and insulting to a work colleague. He inappropriately restrained a patient. The panel heard evidence from Ms 1, a registered nurse working on Ward 110; Ms 2, a registered nurse working on Ward 110; Ms 3, a registered nurse at the Trust; Ms 4, Head of Occupational Health at the Trust and Ms 7 (by telephone), a registered nurse working on Ward 110. The panel accepted into evidence the written statements of Ms 5, a registered nurse working on Ward 110 and Ms 6, Divisional nurse manager at the Hull Royal Infirmary. Mr Sbranca attended the hearing by telephone on day 3, following the NMC closing its case on facts, to make a statement but did not give evidence. Mr Sbranca denied the allegations. The panel was provided with written responses from him to the charges. In reaching its decision on the facts, the panel carefully considered all the evidence adduced in this case, together with the submissions made by Ms Elcoate May and Mr Sbranca. The panel accepted the advice of the legal assessor. The panel was aware that the burden of proof rests on the NMC, and that the standard of proof is the civil standard, namely on the balance of probabilities. This means that the Page 9 of 26

10 facts would be proved if the panel was satisfied that it was more likely than not that the incidents occurred as alleged. The panel first considered the witnesses called by the NMC. The panel considered all of the witnesses called by the NMC to have been clear, consistent and credible and that their evidence had been measured and objective. The panel considered the witnesses evidence to have been reliable. Regarding the written statement of Ms 5, the panel noted its consistency with the accounts given by the other witnesses. The panel took into account Mr Sbranca s responses to the allegations. When asked, all the NMC witnesses who gave evidence at the hearing denied that they had any hostility toward Mr Sbranca because of his nationality, which is something Mr Sbranca has asserted in his statements. The panel noted that Ms 7, who was also a nurse working at the Hospital and who was from outside the UK, stated that she had never encountered any hostility due to her nationality. The panel then proceeded to consider the charges, directing its attention to the available evidence. That you, a Registered Nurse, while working at Hull Royal Infirmary: 1) On 25 July 2015, attempted to awaken Patient A by grasping him by the shoulders and shaking him. Ms 1 gave evidence that on 25 July 2015 she was told by a catering assistant that Mr Sbranca was shaking Patient A vigorously to wake him up for his breakfast. Ms 1 went into the bay and asked Mr Sbranca what had happened. Mr Sbranca explained that he was trying to wake Patient A by shaking his shoulders. Mr Sbranca stated that the doctors do it. Following this a doctor checked Patient A and no injury or marks were found. The panel had sight of the notes of the Trust s investigatory interview with Mr Page 10 of 26

11 Sbranca, dated 30 November 2015, during which he said he had tried to shake the patient on both sides of his shoulders. In light of this evidence the panel found charge 1 proved. 2) On or around 10 August 2015: a) In relation to Patient C who was marked as nil by mouth and whom you had been directly told was nil by mouth : i) Fed pureed food to Patient C. ii) Continued to feed Patient C despite the fact she was coughing and spluttering and food was sitting in her mouth. Ms 2 gave evidence setting out the incident in relation to Patient C, a patient on the Ward who was only able to eat pureed food. Ms 2 stated that, on the morning of 10 or 11 August 2015, she noticed that Patient C had become unwell and was having trouble swallowing. Ms 2 wrote nil by mouth on Patient C s board, which is kept above the patient s bed so that all staff are aware of the patient s circumstances. Ms 2 said that Mr Sbranca was in the room when she wrote on Patient C s board and she said that she told Mr Sbranca that Patient C was nil by mouth. Ms 2 said she came back to Patient C to check on her at around lunchtime and saw Mr Sbranca feeding Patient C with pureed food. Ms 2 said that she had to scoop the food out of Patient C s mouth as Patient C was not able to swallow it. Ms 2 described Patient C as coughing due to the food in her mouth and that Mr Sbranca continued to feed her despite this. She said that Mr Sbranca told her that the kitchen staff had given him the food so that he just started feeding Patient C. Mr Sbranca denied this account and, in his response to the charges stated that it was a lie and during the Trust s investigation stated that he never fed a patient who was nil by mouth. However, the panel had regard to Ms 2 s clear account of events. The behaviour Ms 2 described was in line with the accounts given by the other witnesses regarding Mr Sbranca not listening to what colleagues told him. Page 11 of 26

12 On the balance of probabilities the panel found charge 2(a) proved as whole. b) During your shift, while giving patient care: i) On more than one occasion muttered shit under your breath. ii) Appeared angry and/or stressed and/or disinterested. On 10 or 11 August 2015 Mr Sbranca was working alongside Ms 2. In her evidence Ms 2 stated that Mr Sbranca kept saying the word shit under his breath while giving patient care. Ms 2 stated that Mr Sbranca did not say shit loudly, just under his breath and that no patient made a complaint. Ms 2 stated that: Throughout the shift, [Mr Sbranca] just seemed angry, stressed and not interested. The panel accepted the account provided by Ms 2 in her evidence at the hearing. She gave a clear version of events which was in accord with the descriptions other witnesses gave regarding Mr Sbranca s behaviour on the ward. On the balance of probabilities the panel found charge 2(b) proved as whole. 3) On 24 September 2015, in relation to Patient D, who was on a fluids and puree diet limited to 10 teaspoons per meal; a) Fed Patient D with such a speed and/or force that you were shovelling food into his mouth, giving him no chance to swallow between each spoonful. b) When reminded by Colleague C that Patient D was limited to 10 teaspoons per meal responded in an aggressive manner and said words to the effect of I know what I am doing, don t treat me like an idiot. In her statement Ms 5 (Colleague C) said that on 24 September 2015 during lunch time, she saw Mr Sbranca shovelling food into Patient D s mouth without giving the patient a Page 12 of 26

13 chance to swallow. She stated that when she reminded Mr Sbranca that Patient D was limited to a certain number of teaspoons per meal he responded by saying I know what I am doing don t treat me like an idiot. Ms 5 stated that she found Mr Sbranca s response aggressive and intimidating. The panel was provided with Ms 5 s contemporaneous statement describing these incidents. The panel bore in mind that the behaviour Ms 5 described was in accord with the accounts given by the other witnesses called by the NMC. In light of this evidence the panel found charge 3 proved as whole. 4) On or around 28 August 2015, while working with Colleague D to provide care to Patient B, a dementia patient who had become agitated: a) Attempted to use force to restrain Patient B. b) Refused Colleague D s request that you stop and call a female colleague to assist. c) Stated that you did not need any help from anyone else and that you wanted to sort the job out, or words to that effect. Mr Sbranca denied the allegations listed at charge 4. The panel bore in mind that it appears in his responses that he may not understand the term restrain. Ms 7 (Colleague D) gave clear evidence in relation to the allegations. Ms 7 stated that on 28 August 2015 she was working with Mr Sbranca providing personal care to Patient B. She said that Patient B became agitated and that he was kicking Mr Sbranca. Ms 7 said Mr Sbranca was trying to contain Patient B with force. She described the event in detail and referred to the strained breathing she heard from Mr Sbranca as a result of his actions. Ms 7 said that she suggested calling for help, but that Mr Sbranca insisted he was able to manage the situation. The panel accepted the evidence of Ms 7. Accordingly the panel found charge 4 proved as whole. Page 13 of 26

14 5) On 21 January 2016, during an appointment in the Occupational Health Service department, behaved in a rude and/or intimidating manner towards Colleague A, in that you: a) Would not sit down despite being asked. b) Stood between Colleague A and the door of the treatment room. c) Remained silent and uncommunicative when asked questions and/or spoken to. The panel heard that Mr Sbranca attended the Occupational Health Department on 21 January 2016 for a routine Trust employee appointment. In her evidence Ms 3 (Colleague A) gave a very clear account of the incident and said that Mr Sbranca would not sit down when she asked him, stood between her and the door of the room and remained silent and uncommunicative when she asked him questions and spoke to him. Ms 3 described that this made her feel uncomfortable and intimidated to the extent that she did not want to be alone with Mr Sbranca again following the incident. The panel considered that the behaviour Ms 3 described was in accord with the accounts given by the other witnesses regarding Mr Sbranca s behaviour. In light of this evidence the panel found charge 5 proved as whole. 6) On 22 January 2016, attended the Occupational Health Service department where you: a) Displayed abusive and intimidating behaviour towards staff members, including swearing at staff. b) Behaved aggressively. c) Continued to swear despite being asked to stop by Colleague B. Page 14 of 26

15 d) Would not leave until you had been asked on more than one occasion. Ms 4 (Colleague B) gave evidence that on 22 January 2016 Mr Sbranca came back to the Occupational Health Department and was asked by the Administration Assistant if he had an appointment. She said that Mr Sbranca pointed to a mark on his arm and stated Would you fucking have this? One of your nurses did this. She said that Mr Sbranca continued to display abusive and intimidating behaviour towards staff members by behaving aggressively, swearing at her and then calling her a fucking bitch when he was asked to leave the Department. Ms 4 gave a clear account of the incidents referred to at charge 6 above. The panel noted that Ms 4 is clearly an experienced member of staff at the Trust and it bore in mind that her account was supported by Ms 3 s evidence regarding the behaviour she encountered from Mr Sbranca. In light of this evidence the panel found charge 6 proved as whole. Determination on misconduct and impairment: Having announced its finding on the facts, the panel then moved on to consider whether the facts found proved amounted to misconduct and, if so, whether Mr Sbranca s fitness to practise is currently impaired by reason of that misconduct. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. The panel had regard to the submissions of Ms Elcoate May. The panel had regard to the Mr Sbranca s correspondence with the NMC and to his earlier oral statement. The panel accepted the advice of the legal assessor. Page 15 of 26

16 In determining whether or not Mr Sbranca s fitness to practise is currently impaired, the panel bore in mind that this is a two stage process. It first considered whether the facts found proved in this case amount to misconduct and, if so, whether as a result of that misconduct, Mr Sbranca s fitness to practise is currently impaired. The panel bore in mind that there is no burden or standard of proof at this stage of the proceedings and that the issue of impairment was a matter for the independent judgement of the panel. In reaching its decision on misconduct, the panel bore in mind its duty to protect the public, to maintain public confidence in the profession and the regulatory process, and to declare and uphold proper standards of behaviour and conduct. The panel considered first, whether the facts giving rise to the charges amounted to misconduct. The panel considered all the relevant evidence in this case. It has found that Mr Sbranca acted in a physically and verbally aggressive manner in the presence of and toward patients and colleagues and that he did not respond to the advice and requests of colleagues. His actions placed patients and colleagues at unwarranted risk of harm. The panel considered that such behaviour clearly represented significant departures from the standards expected of a registered nurse. It was behaviour which would be considered unacceptable by practitioner colleagues and the wider public. The panel concluded that these were significant failings and breached the following provisions of the NMC 2015 code of conduct: 1 Treat people as individuals and uphold their dignity To achieve this, you must: 1.1 treat people with kindness, respect and compassion 2 Listen to people and respond to their preferences and concerns To achieve this, you must: 2.1 work in partnership with people to make sure you deliver care effectively Page 16 of 26

17 2.6 recognise when people are anxious or in distress and respond compassionately and politely. 3 Make sure that people s physical, social and psychological needs are assessed and responded to To achieve this, you must: 3.1 pay special attention to meeting the changing health and care needs of people during all life stages 4 Act in the best interests of people at all times To achieve this, you must: 4.1 balance the need to act in the best interests of people at all times with the requirement to respect a person s right to accept or refuse treatment 4.3 keep to all relevant laws about mental capacity that apply in the country in which you are practising, and make sure that the rights and best interests of those who lack capacity are still at the centre of the decision-making process 8 Work cooperatively To achieve this, you must: 8.1 respect the skills, expertise and contributions of your colleagues, referring matters to them when appropriate 8.2 maintain effective communication with colleagues 8.4 work with colleagues to evaluate the quality of your work 8.5 work with colleagues to preserve the safety of those receiving care 9 Share your skills, knowledge and experience for the benefit of people receiving care and your colleagues To achieve this, you must: Page 17 of 26

18 9.3 deal with differences of professional opinion with colleagues by discussion and informed debate, respecting their views and opinions and behaving in a professional way at all times 14 Be open and candid with all service users about all aspects of care and treatment, including when any mistakes or harm have taken place To achieve this, you must: 14.1 act immediately to put right the situation if someone has suffered actual harm for any reason or an incident has happened which had the potential for harm 14.2 explain fully and promptly what has happened, including the likely effects, and apologise to the person affected and, where appropriate, their advocate, family or carers 19 Be aware of, and reduce as far as possible, any potential for harm associated with your practice To achieve this, you must: 19.1 take measures to reduce as far as possible, the likelihood of mistakes, near misses, harm and the effect of harm if it takes place 20 Uphold the reputation of your profession at all times To achieve this, you must: 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 20.5 treat people in a way that does not take advantage of their vulnerability or cause them upset or distress 20.8 act as a role model of professional behaviour for students and newly qualified nurses and midwives to aspire to Page 18 of 26

19 The panel was aware that not every act falling short of what would be proper in the circumstances, and not every breach of the Code (2015), would be sufficiently serious that it could properly be described as misconduct. However, the panel has found clear evidence of Mr Sbranca s intimidating and abusive behaviour which was such that colleagues did not feel safe being in a room alone with him. Mr Sbranca s behaviour clearly breached fundamental tenets expected of a registered nurse. In addition, Mr Sbranca s behaviour demonstrated clear failures in his duty to uphold the reputation of his profession at all times. In all the circumstances, the panel was satisfied that the facts found proved were sufficiently serious to constitute misconduct. The panel then went on to consider whether Mr Sbranca s fitness to practise is currently impaired by reason of his misconduct. The panel reminded itself that it should consider not only the risk that a registrant poses to members of the public, but also the public interest in upholding proper professional standards and public confidence in the NMC as a regulator, and whether those aims would be undermined if a finding of impairment were not made in the circumstances. The panel had regard to the case of Kimmance Kerr J [2016] EWHC 1808 (Admin) as referred to by the legal assessor: There was indeed no evidence of insight and remediation in this case. I do not much like those jargon words. They do not do much to illuminate the reality, which is that a doctor or other professional who has done wrong has to look at his or her conduct with a self-critical eye, acknowledge fault, say sorry and convince a panel that there is real reason to believe he or she has learned a lesson from the experience. The panel also reminded itself of the guidance of Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v. NMC and Paula Grant [2011] EWHC 927 (Admin), adopting the test proposed by Dame Janet Smith in the Shipman enquiry: Page 19 of 26

20 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 to act in the future 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 profession into disrepute; and/or c) Has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession; and/or d) Has in the past acted dishonestly and/or is liable to act dishonestly in the future. The panel considered that, in combination, Mr Sbranca s misconduct fell into the impairment categories (a), (b) and (c) identified above. The panel had regard to whether Mr Sbranca s misconduct is easily remediable, whether it had been remedied and whether it is likely to be repeated. The panel bore in mind that the charges relate to behaviour demonstrative of attitudinal issues and, accordingly, may be difficult to remediate. The panel recognised that Mr Sbranca has engaged with the hearing to some extent. The panel secretary, legal assessor and case presenter had together contacted Mr Sbranca by telephone on several occasions throughout the hearing to explain procedural matters. The panel had provided Mr Sbranca with the opportunity to attend the hearing via telephone from Romania at times which were suitable to him. Mr Sbranca did so at the facts stage and made a statement to the panel. The panel had attempted to read Mr Sbranca its decision on the facts. However, this was not possible due to Mr Sbranca constantly interrupting the Chair, at times in an aggressive manner, and stating that he did not want to hear the facts repeated to him. On day four of the hearing the case officer sent Mr Sbranca an containing the panel s written Page 20 of 26

21 determination on the facts and Mr Sbranca stated that he would contact the NMC later that day to confirm he had read the document. However, no call was received. Attempts were made to contact Mr Sbranca on the morning of day five of the hearing. The calls were not answered and appear to have been hung up on. A text message was sent by the case officer to Mr Sbranca but there was no reply. A further two calls were made at 2pm Romanian time which is the time Mr Sbranca had stated he would be available. Again there was no answer and the calls appeared went to voic . The panel determined that every possible effort had been made to afford Mr Sbranca the opportunity to continue to engage with the hearing but that he appeared to have chosen to disengage at this stage. The panel therefore continued with the hearing in Mr Sbranca s absence. There was no detailed information before the panel regarding Mr Sbranca s current circumstances or of any steps that Mr Sbranca had taken to address his behaviour. There was no evidence before the panel of any remorse or insight from Mr Sbranca regarding the charges. In these circumstances, the panel therefore could not be satisfied that Mr Sbranca understands the impact his actions had on patients, his colleagues and the wider reputation of the nursing profession. The panel was concerned about the lack of evidence that Mr Sbranca possessed meaningful insight into his pattern of behaviour. He had not demonstrated any understanding of the potential effects of his conduct on the reputation and standing of the nursing profession. The panel was not convinced that Mr Sbranca had looked at his conduct with a self-critical eye; nor was it convinced that there was a real reason to believe he had learnt a lesson from the experience. In the absence of full insight into his misconduct or evidence of Mr Sbranca s current practice, or about any steps he had taken to address the failings identified, the panel was unable to dismiss concerns that Mr Sbranca might repeat such, or similar, misconduct in the future. The panel concluded that there remained a high risk of Mr Sbranca s repeating his misconduct. The panel also found that Mr Sbranca s behaviour had undermined public trust and confidence in the profession. Page 21 of 26

22 For all these reasons, the panel determined that the need to uphold proper professional standards and public confidence in the profession would be further undermined if a finding of impairment were not made in the circumstances. Accordingly, the panel determined that Mr Sbranca s current fitness to practise is impaired by reason of his misconduct on both public protection and public interest grounds. Determination on sanction: The panel considered this case very carefully and decided to make a striking-off order. It directs the registrar to strike Mr Sbranca off the register. The effect of this order is that the NMC register will show that Mr Sbranca has been struck-off the register. In reaching this decision, the panel had regard to all the evidence adduced in this case, as well as the submissions from Ms Elcoate May and as well as those of Mr Sbranca. The panel accepted the advice of the legal assessor. The panel bore in mind that any sanction imposed must be appropriate and proportionate and, although not intended to be punitive in its effect, may have such consequences. The panel had careful regard to the Sanctions Guidance (SG) published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgment. Ms Elcoate May invited the panel to impose a striking-off order. She outlined what the NMC considered to be aggravating and mitigating features in this case, and submitted that, given the facts found proved as well as Mr Sbranca s conduct and attitude throughout this hearing, the only sanction that would suitably protect the public and uphold the wider public interest would be that of a striking-off order. Mr Sbranca submitted that the sanctions available at this stage are biased, and questioned the independence of the panel in making any sanction against him. Before making its determination on sanction, the panel first identified what it considered to be the aggravating and mitigating features in this case: Page 22 of 26

23 The panel considered the aggravating features to be: Mr Sbranca s misconduct took place over a protracted period of time; Mr Sbranca s persistent attitudinal issues, including throughout this hearing; Evidence of physical and verbal aggression towards colleagues and patients from Mr Sbranca; Mr Sbranca s conduct throughout this hearing, including his submissions on sanction, indicates a lack of insight, and Mr Sbranca has provided no evidence of remediation. The panel considered the mitigating features to be: No evidence of actual patient harm; and Mr Sbranca s limited engagement throughout this hearing. The panel first considered whether to take no action, but concluded that this would be inappropriate in view of the seriousness of the case. The panel decided that it would be neither proportionate nor in the public interest to take no further action and that taking no further action would not protect the public. 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 Sbranca 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 panel decided that it would be neither proportionate nor in the public interest to impose a caution order, nor would such a sanction protect the public. The panel next considered whether placing conditions of practice on Mr Sbranca s registration would be a sufficient and appropriate response. The panel was mindful that any conditions imposed must be proportionate, measurable and workable, and took into account the SG in making its decision. The panel considered that there was evidence before it of Mr Sbranca s harmful deep-seated attitudinal issues (including during the Page 23 of 26

24 course of this hearing). The panel also considered that Mr Sbranca has not demonstrated any insight, remorse nor any willingness to respond to retraining. The panel was therefore of the view that there are no practical or workable conditions that could be formulated, given the nature of the facts found proved in this case. It was also of the view that Mr Sbranca s attitude was not something that could be addressed through retraining. Furthermore, the panel considered that the placing of conditions on Mr Sbranca s registration would not adequately address the seriousness of this case and would not protect the public, or satisfy the wider public interest The panel then went on to consider whether a suspension order would be an appropriate sanction, and considered the SG in making its decision. The panel considered that it has received no evidence of Mr Sbranca repeating his misconduct. However, the panel also considered that Mr Sbranca has been subject to an interim suspension order since The panel considered that Mr Sbranca s misconduct occurred over an extended period of time, and was not an isolated incident. The panel had received evidence of harmful deep-seated attitudinal problems, including throughout this hearing. The panel was not satisfied that Mr Sbranca had any insight into his misconduct, and had previously determined that he remained at a high risk of repeating his behaviour. Mr Sbranca s misconduct, as highlighted by the facts found proved, was a significant departure from the standards expected of a registered nurse in the UK. The panel noted that the serious breach of the fundamental tenets of the profession evidenced by Mr Sbranca s actions is fundamentally incompatible with his remaining on the register. The panel took into account the mitigation put forth by Mr Sbranca. Balancing all of these factors, the panel determined that a suspension order would not be an appropriate or proportionate sanction. Finally, in looking at a striking-off order, the panel considered the SG. The panel considered that Mr Sbranca s misconduct was a serious departure from the relevant professional standards, due to his numerous breaches of the Code. The panel also Page 24 of 26

25 considered that, although there is no evidence of actual harm, Mr Sbranca behaved in such a way that could foreseeably have resulted in harm to patients. The panel was especially concerned about Mr Sbranca s persistent lack of insight into his misconduct, so much so that he continued to deny the facts and offer justifications for his behaviour at this stage of the proceeding. The panel also considered that Mr Sbranca demonstrated wilful disregard for his regulator throughout this hearing, in his refusal to recognise the independence of the panel, as well as this hearing process. The panel considered that Mr Sbranca s actions are fundamentally incompatible with his remaining on the register. The panel was of the view that the findings in this particular case demonstrate that Mr Sbranca s actions were serious and 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, the panel determined that the appropriate and proportionate sanction is that of a striking-off order. Having regard to the matters it identified, in particular the effect of Mr Sbranca 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 concluded that nothing short of this would be sufficient in this case. The panel considered that this order was necessary to mark the importance of maintaining public confidence in the profession, and to send to the public and the profession a clear message about the standard of behaviour required of a registered nurse. The panel had not information as to Mr Sbranca s circumstances and whilst a substantive order may have a detrimental effect upon him, this is outweighed by the need to protect the public and satisfy the wider public interest considerations. Page 25 of 26

26 Determination on interim order: The panel considered the submissions made by Ms Elcoate May that an interim suspension order should be made on the grounds that it is necessary for the protection of the public and is otherwise in the public interest. Mr Sbranca did not make any submissions to the panel on this point. The panel accepted the advice of the legal assessor. The panel was satisfied that an interim suspension order is necessary for the protection of the public and is otherwise in the public interest. The panel had regard to the seriousness of the facts found proved and the reasons set out in its decision for the substantive order in reaching the decision to impose an interim order. To do otherwise would be incompatible with its earlier findings. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined. If no appeal is made, then the interim suspension order will be replaced by the strikingoff order 28 days after Mr Sbranca is sent the decision of this hearing in writing. That concludes this determination. Page 26 of 26