Nursing and Midwifery Council:

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1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 19 October October 2017 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of registrant: NMC PIN: Grace Marlow-Reginer 09J0199E Part(s) of the register: Registered Nurse, Sub part 1 RNMH Mental Health Nurse, Level 1 (1 August 2010) Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: England Conviction Anthony Mole (Chair, lay member) Linda Pascall (Registrant member) Sue Heads (Lay member) Alexander Jacobs Hassan Reese Present and represented by Joseph Nthini Represented by Ayanna Nelson, counsel, instructed by NMC Regulatory Legal Team. Facts proved by admission: 1,2,3 Fitness to practise: Sanction: Interim Order: Impaired Striking off order 18 months suspension order 1

2 Decision and Reasons on application under Rule 19: At the outset of the hearing, Mr Nthini made a request in private that the entirety of this hearing be held in private. He told the panel that there had been a previous case handled by the NMC where the media were present, and that subsequently information was published, with no facts put into the article. He said that the allegations were later found to have been false but that damage had been caused to you by the inaccurate reports in the press. [PRIVATE] Ms Nelson, on behalf of the NMC, opposed this application as the starting point for cases of this type is that they shall be held in public. She told the panel that as this is a conviction case, the facts of the offences will have already been aired in public at court and would not be new to anybody. She said that Mr Nthini s application is based on supposition only as the information contained in this case may go into the media [PRIVATE] Ms Nelson told the panel that the public interest would demand that this hearing is held in public. The legal assessor reminded the panel that while Rule 19 (1) of the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended 2012) (The Rules) provides, as a starting point, that hearings shall be conducted in public, Rule 19 (3) states that the panel may hold hearings partly or wholly in private if it is satisfied that this is justified by the interests of any party or by the public interest. The panel was of the view that there is insufficient evidence for this case to be held in private in its entirety. It took into account that the issues raised surrounding the convictions have already been aired in public and it was of the view that it is strongly in the public interest for this case to be heard in public. However, the panel considered that as and when references are made to sensitive personal matters [PRIVATE] those matters would be heard in private as your interests and those of your family outweigh the public interest in that respect. Preliminary application for charges 2 and 3 to be struck out 2

3 Mr Nthini applied to the panel for charges 2 and 3 to be struck out. He told the panel that those two charges are historical. He submitted that you were not a nurse at the time and therefore were not bound by the NMC s code of conduct. He told the panel that you had served your time and that the convictions had been spent. Mr Nthini submitted that by the time you went to university, despite notifying the university of your convictions, you were still allowed to attend and subsequently qualify as a nurse. He told the panel that it is unfair for these matters to be considered now as they were not considered before. Mr Nthini submitted that these matters are very different in nature and different in context. He said that at the time charges 2 and 3 occurred, you accepted the charges and that they were dealt with accordingly. He submitted that these matters should not be for the panel to deal with this at this hearing. Ms Nelson opposed the application, citing Article 22 (3) of the Nursing and Midwifery Order She told the panel that charges 2 and 3 are relevant. She accepted that there was no requirement for you to declare the convictions to the NMC at that time but that you would have been required to notify the university about your convictions. Ms Nelson submitted that this presents a difficulty as the convictions are now relevant. Ms Nelson submitted that the charges should be looked at overall, considering the full context of the case. She said that this case contains three sets of convictions which span over 18 years and concern matters relating to dishonesty. She said that charge 1 is intrinsically linked to and flows from the earlier convictions listed in charges 2 and 3, which can give rise to a finding of impairment. She told the panel that Article 22 (3) allows for this case to be considered even though you were not a registered nurse at the time of the offences or the convictions. She submitted that the charges demonstrate a pattern of offending which the panel should consider. 3

4 The panel accepted the advice of the legal assessor. He advised that Article 22 of the Nursing and Midwifery Order 2001 sets out the gateways for allegations of impaired fitness to practise to be considered. Article 22 (3) states: This article is not prevented from applying because the allegation is based on a matter alleged to have occurred at a time when the person against whom the allegation is made was not registered. The legal assessor advised that this provision, therefore, allowed charges 2 and 3 to properly be included for consideration at this hearing. The panel determined that it should fully consider charges 2 and 3. It took into account that Article 22 (3) allows for a panel to hear such allegations as they stand and that although you were not a registered nurse at the time of the convictions, the charges are legitimately before the panel for consideration. In relation to the submissions made by Mr Nthini concerning your remediation since those allegations, the panel determined that such matters are legitimate points to consider should the hearing progress to the stage of impairment. The panel rejected the submission that it would be unfair for charges 2 and 3 to be considered due to their age. In the panel s judgement, the public interest requires allegations of this nature to be fully considered and determined. How long ago the allegations occurred was a valid factor for consideration, potentially in your favour, during the various stages (if reached) of the hearing. In all the circumstances the panel rejected Mr Nthini s application. Details of charges: That you, a registered nurse 1. On 10 August 2016 at St Albans Crown Court you were convicted of two offences of Dishonestly make a false representation to make a gain for self/another or cause 4

5 loss to another/expose other to risk contrary to section 1(2)(a) and (2) The Fraud Act On 3 January 2001 at East Hertfordshire Magistrates Court you were convicted of the following offences; a) Handling Stolen Goods Contrary to section 22(1) of The Theft Act 1968 b) Obtaining a Pecuniary advantage for self by deception contrary to section 16(1) of The Theft Act 1968 c) Having a false instrument with intent contrary to section 5(1) Forgery and Counterfeiting Act 1981 d) Procuring execution of values security by deception contrary to section 20(2) of The Theft Act 1968 e) Obtaining pecuniary advantage for self by deception contrary to section 16(1) of The Theft Act 1968 f) Making a false instrument contrary to section 1 Forgery and Counterfeiting Act 1981 g) Using false instrument section 3 and 6 Forgery and Counterfeiting Act On 10 August 1998 at Harrow Crown Court you were convicted of three offences of Theft contrary to section 1 of The Theft Act AND in light of the above, your fitness to practise is impaired by reason of your convictions. Background You were registered as a nurse in Charge 1 5

6 On 10 August 2016 at St Albans Crown Court you were convicted of two offences of dishonestly make a false representation to make a gain for self/another or cause loss to another/expose other to risk contrary to section 1(2)(a) and (2) The Fraud Act The facts upon which you were convicted were that on 16 July 2013, you completed a registration form for CTS Recruitment, a company which recruits nurses. When asked on the CTS Recruitment registration form: Have you ever been convicted of a criminal offence, you circled No. This was dishonest as you had previous convictions. The CTS registration form was signed by you and the date of birth given on the form was 19 March 1970, which is incorrect. Details from your UK passport show your date of birth as 9 January You dishonestly signed a declaration on the CTS Recruitment registration form confirming that the information you provided was correct. You pleaded not guilty but were found guilty by a jury. You were sentenced to a community order for 12 months with a requirement that you carry out 120 hours of unpaid work. Charge 2 On 3 January 2001, you pleaded guilty to seven dishonesty offences as set out above. Your case was committed for sentence to the Crown Court at St Albans where, on 30 March 2001, you were sentenced to 18 months imprisonment concurrent on each count. The panel was told that the facts of those convictions were that a credit card in a false name was found by police at your home address. Furthermore, a batch of birth certificates had gone missing in the post. One of the missing birth certificates was found at your home address. By your plea of guilty you admitted that you intended to use the stolen birth certificate. You also pleaded guilty to altering a cheque from the amount of 500 to 5000, paying it into an account of someone with a different name to 6

7 you and subsequently attending the bank claiming to be that other person. Those seven offences to which you pleaded guilty occurred between 1998 and Charge 3 On 10 August 1998 you were convicted at the Crown Court at Harrow of three offences of theft. On 11 September 1998, you were sentenced to a probation order for 12 months with a requirement that you attend the Women Offending Behaviour Programme. The panel noted that the facts of those convictions related to three stolen cheques. Decision on the findings on facts and reasons At the outset of the hearing you informed the panel that you admit the charges. The panel therefore found the facts in charges 1, 2 and 3 proved by way of your admission. Decision and reasons on impairment Having announced its finding on all the facts, the panel then moved on to consider, whether your fitness to practise is currently impaired by reason of your convictions. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. The panel noted your acceptance that your fitness to practise is currently impaired by reason of your convictions, however the question of current impairment is for the panel s independent judgement. Ms Nelson submitted that you have acted dishonestly. She submitted that there is a pattern of offending and that you are still liable to act dishonestly in the future. She told the panel that you have demonstrated little insight. She said that the charges were 7

8 denied regarding the conviction on 10 August 2016 and that you have still denied it today when giving evidence. She told the panel that you have not recognised the impact of your actions upon your colleagues and the profession. Regarding remediation, Ms Nelson submitted that this is less relevant in this case and referred to the case of Cheatle v General Medical Council [2009] EWHC 645 (Admin). Ms Nelson submitted that it was open to the panel as to how they find impairment. She invited the panel however to make a finding of impairment on public interest grounds and also to reinforce public confidence in the nursing profession as a whole. Mr Nthini told the panel that you accept current impairment. In relation to charges 2 and 3, these charges date back to more than 16 years ago. He said that you have served your time and that you are a very different person compared to who you were in the past. He told the panel that it takes a lot of courage and determination for someone to change their lives. He said that attending university and obtaining a 2:1 in nursing is a testament to your character and tenacity. He submitted that ever since you qualified as a nurse, there have been no complaints against your practice. He said that you are a good nurse with good clinical skills to offer. Mr Nthini told the panel that you have admitted making mistakes and that you fell short of the standards expected of a nurse. He told the panel that you acknowledge the impact of your actions and have insight. Mr Nthini said that your convictions took place outside of the work environment. You gave evidence on oath. You expressed genuine remorse and told the panel that there was no likelihood that you would ever put yourself in this position again. You explained the personal circumstances which existed at the time of your offending behaviour. You told the panel that you were proud of how you had turned your life around when released from prison and that you wanted to be a good role model to your children. The panel was concerned that your evidence lacked insight. Your remorse appeared to be in relation to the situation which you had found yourself in when you committed the 8

9 offences and the impact that your convictions have had upon you. However, despite prompting by questions from the panel, you failed to demonstrate any insight into how your convictions have impacted upon the public or the profession as a whole. Whilst you accepted the fact that you were convicted, you sought to challenge the findings of the jury in Charge 1 and the basis upon which you were convicted. The panel has accepted the advice of the legal assessor. In reaching its decision on impairment the panel had regard to the need to safeguard the public interest, which includes the maintenance of public confidence in the profession, and the upholding of proper standards of conduct and behaviour. The panel considered the wider public interest. It took account of 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) which reinforced the need for a panel to consider 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 of the case. The panel further considered the test set out in that case as follows: Do our findings of fact in respect of the [registrant s] conviction[s] 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 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. 9

10 The panel concluded that your conduct leading to your convictions in the past, engaged the limbs specified in (b) (c) and (d) above. In relation to Charge 1 alone, the panel considered that your offences were serious. You dishonestly made false representations to a nursing recruitment agency in order that the agency would not discover your previous convictions for dishonesty. You did this in order to obtain work as a nurse. Your actions undermined the process of safeguarding to which the public expects nurses to be subjected so that they can have confidence that those responsible for their care are honest and trustworthy. The panel considered that in committing and being convicted of such criminal offences, you had shown a flagrant disregard for the laws of the country. Taking this into account the panel determined that as well as acting dishonestly, you breached fundamental tenets of the profession and inevitably brought the profession into disrepute. The panel also considered that you had breached a number of fundamental tenets of the profession as outlined in the NMC publication The Code: professional standards of practice and behaviour for nurses and midwives, March 2015, as specified below: 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 20.3 be aware at all times of how your behaviour can affect and influence the behaviour of other people 20.4 keep to the laws of the country in which you are practising 20.8 act as a role model of professional behaviour for students and newly qualified nurses and midwives to aspire to 10

11 23. Co-operate with all investigations and audit 23.2 tell both us and any employers as soon as you can about any caution or charge against you, or if you have received a conditional discharge in relation to, or have been found guilty of, a criminal offence (other than a protected caution or conviction). In considering whether you would be liable, in the future, to act so as to bring the profession into disrepute, and/or to breach one of the fundamental tenets of the profession, or act dishonestly, the panel also had careful regard to the issues of remediation and your insight. The panel took into account that your insight revolves largely around the effect your convictions had on you but not on the profession. When making its decision, the panel bore in mind that charges 2 and 3 relate to convictions dating back to 2001 and 1998 respectively. It noted that for 15 years, after your release from prison, there had been no further offending and that in 2010 you registered as a nurse having undertaken a university degree and achieved a 2:1 whilst caring for your family. The panel was of the view that this, on the face of it, demonstrated positive remediation. However, in 2016 you were then convicted of two further offences of dishonesty which were connected to charges 2 and 3 in that you sought to hide those convictions from your employer. The panel concluded that Charge 1 on its own is so serious that a finding of current impairment is necessary on the ground that otherwise public confidence in the profession would be undermined. In relation to Charges 2 and 3, despite the remediation which appeared to have taken place since your release from prison, your behaviour in committing further offences of a similar nature (dishonesty) in 2016 demonstrates that you had not fully remediated your behaviour following the 1998 and 2001 convictions. This leads the panel to conclude that there is a real risk that you will repeat your behaviour. 11

12 Accordingly, the panel determined that your fitness to practise is impaired by reason of your convictions. Determination on sanction: Having determined that your fitness to practise is currently impaired, the panel considered what sanction, if any, it should impose on your registration. The panel has considered this case very carefully and has decided to make a strikingoff order. Ms Nelson on behalf of the NMC referred the panel to the NMC s Sanctions Guidance ( SG ) and reminded it that, when making its decision on sanction, it should observe the principle of proportionality and make the least restrictive order which is sufficient to protect the public and the wider public interest. Ms Nelson submitted it was the panel s professional independent judgement as to what sanction to impose. She asked the panel to consider the case of Parkinson v NMC [2010] EWHC 1898 (Admin) with regards to your dishonesty. She invited the panel to find that your actions were fundamentally incompatible with being a registered nurse. Mr Nthini on your behalf told the panel that you have demonstrated remorse. He said that you are dedicated and that you love your career. He told the panel that you had an option to leave but have attended this hearing. He submitted that you have had no issues with your clinical practice since you became a registered nurse in He said that you have been a role model as a nurse and have mentored students. Mr Nthini told the panel that you are hardworking and that a striking-off order if imposed by the panel, would deprive the profession of a good nurse. Mr Nthini told the panel that you accept that your fitness to practise is impaired. He said that if you were given another opportunity, you would be able to inspire others. He told the panel about the financial difficulties which you have experienced and said that you 12

13 have been punished enough. Mr Nthini invited the panel to impose a suspension order for 3 months. The panel accepted the advice of the legal assessor. The panel has borne in mind that the purpose of a sanction is not to be punitive, although it may have that effect, but is intended to protect patients and satisfy the wider public interest. The wider public interest includes maintaining public confidence in the profession and the NMC, and declaring and upholding proper standards of conduct and behaviour. The public interest also includes the benefit to the public in allowing a registered nurse with valuable skills and experience to continue in practice. The panel had careful regard to the NMC s SG. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. The panel found the following aggravating features: There was a pattern of behaviour involving a history of dishonesty convictions (albeit with a gap of 15 years between charges 1 and 2) The dishonesty related to your employment as a nurse (charge 1) Limited insight shown by you into the effect of your criminal conviction upon the reputation of the profession, your colleagues and the public interest. Deliberate act for personal gain The panel identified the following mitigating features: No harm to patients Your consistent engagement and participation in the NMC s proceedings No evidence of previous regulatory concerns You accepted the convictions Admission to facts proved and impairment 13

14 The panel then considered what, if any, sanction was appropriate. It first considered taking no action. The panel concluded that taking no action would be wholly inappropriate. It determined that convictions of this nature demand that a sanction be imposed to mark the serious departure from the professional standards set out in the NMC Code. It also determined that taking no action would be insufficient to satisfy the public interest in upholding proper professional standards and maintaining public trust and confidence in the nursing profession and in the NMC as a regulator. 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 was satisfied that your convictions evidenced serious failings in your honesty and integrity and were therefore not at the lower end of the spectrum. The panel decided that a caution order, even for the maximum period of five years, would be insufficient to maintain public confidence in the profession. The panel next considered whether placing conditions of practice on your registration would be a sufficient and appropriate response. The panel took into account that any conditions imposed must be proportionate, measurable and workable and must provide sufficient public protection. The panel noted that no concerns have been raised relating to your clinical competence and that retraining would not be relevant. The issues before the panel arose from your convictions. The panel determined that the concerns as to your honesty and integrity could not be met by a conditions of practice order. The panel decided that there were no practical or workable conditions that could be formulated, given the nature of the charges. Further, a conditions of practice order would be insufficient to reflect the seriousness of your actions, nor would it maintain confidence in the nursing profession and the NMC as its regulator. 14

15 The panel went on to consider a suspension order. The NMC panel was of the view that you have demonstrated limited insight into the impact of your convictions on the profession as a whole. The panel noted that you have engaged with the NMC during the investigation process. The lack of insight by you into the effect of the convictions raises serious questions about your fitness to remain on the register. In relation to dishonesty, the panel considered the case of Parkinson. It determined that, for the reasons set out in its decision on impairment, this case is at the higher end of the scale of dishonesty as there is a history of similar offences, with a propensity to reoffend. The panel concluded that in these circumstances, a suspension order, whilst it would protect the public whilst it was in force, would undermine the trust and confidence in the nursing profession. Your conduct amounted to a serious departure from the standards expected of a registered nurse. The panel determined that your behaviour in this case was so serious that a suspension order would not be sufficient to mark the charges found proved in order to satisfy the public interest, and is not an appropriate or proportionate sanction. Finally, in considering a striking-off order, the panel took note of the following paragraphs of the SG: - Can public confidence in the professions and the NMC be sustained if the nurse or midwife is not removed from the register? - Is striking-off the only sanction which will be sufficient to protect the public interest? - Is the seriousness of the case incompatible with ongoing registration? - This sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a registered professional, which may involve any of the following - Dishonesty, especially where persistent or covered up - Convictions or cautions involving any of the conduct or behaviour set out above 15

16 The panel considered your actions in relation to all 3 convictions to be a significant departure from the standards expected of a registered nurse and were so serious in nature that they were fundamentally incompatible with remaining on the register. Charge 1 in its own right for the reasons expressed earlier, would in the panel s view be sufficient to impose a striking off order. The panel considered that the actions as detailed in your convictions, involved dishonesty which was serious and not isolated. Balancing all of these factors and after taking into account all the evidence before it, the panel determined that the only sanction which would be sufficient to satisfy the public interest in this case was a striking-off order. The panel considered that such an order was necessary to mark the seriousness of the convictions, in order to declare and uphold proper professional standards for registered nurses and maintain public confidence in the profession and the regulatory process. The panel recognised that such an order may cause you financial hardship but was of the view that the public interest outweighed your own interests in this matter. The panel therefore directs the registrar to strike you off the register. The effect of this order is that the NMC register will show that you have been struck-off the register. Determination on Interim Order Ms Nelson, on behalf of the NMC submitted that an interim order should be made in the public interest. She 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 Nthini opposed the application to impose an interim order. He told the panel that such an interim order would be very punitive. 16

17 The panel accepted the advice of the legal assessor. 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 in the public interest notwithstanding the high bar required in such a case. Not to make an interim order would be incompatible with the panel s earlier findings. The public would be rightly concerned if a nurse, with the findings reached by this panel was permitted to practice during an appeal period. In all the circumstances, the panel determined that it is in the public interest that it should make an interim suspension order. Such an order is both appropriate and proportionate following its decision on sanction to impose a striking-off order. The panel determined that the order should run for a period of 18 months in order to cover the period for any appeal. If at the end of the appeal period of 28 days, you have not lodged an appeal, the interim order will lapse and be replaced by the substantive order. On the other hand, if you do lodge an appeal, the interim order will continue to run until the conclusion of the appeal. That concludes this determination. 17