Nursing and Midwifery Council: Fitness to Practise Committee Substantive Hearing October 2017

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing October 2017 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: NMC PIN: Part(s) of the register: Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: Facts proved: Saraspedy Caussyram 86F0047E Registered Mental Health Nursing England Conviction Christopher Morrow-Frost (Chair, lay member) Andrew Clemes (Lay member) Judith McCann(Registrant member) Lucia Whittle-Martin Hassan Reese Not present and not represented Represented by Michael Bellis (case presenter), counsel, instructed by NMC Regulatory Legal Team. 1 (by way of conviction) Fitness to practise: Sanction: Interim Order: Impaired Striking-Off Order Interim suspension order 18 months 1

2 Details of charge: That you, a registered nurse: 1. On 23 February 2016 at Croydon Crown Court was convicted on one count of doing acts to facilitate the commission of breaches of immigration law, contrary to Section 25(1) of the Immigration Act And, in light of the above, your fitness to practise is impaired by reason of your convictions. Decision on Service of Notice of Hearing The panel was informed at the start of this hearing that Mrs Caussyram was not in attendance and that written notice of this hearing had been sent to Mrs Caussyram s registered address by recorded delivery and by first class post on 22 August The panel took into account that the notice letter provided details of the allegation, the time, dates and venue of the hearing and, amongst other things, information about Mrs Caussyram s right to attend, be represented and call evidence, as well as the panel s power to proceed in her absence. Mr Bellis submitted the NMC had complied with the requirements of Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the Rules ). The panel accepted the advice of the legal assessor. In the light of all of the information available, the panel was satisfied that Mrs Caussyram has been served with notice of this hearing in accordance with the requirements of Rules 11 and 34. 2

3 Decision on proceeding in the absence of the Registrant The panel next considered whether it should proceed in the absence of Mrs Caussyram. The panel had regard to Rule 21 (2) which states: (2) Where the registrant fails to attend and is not represented at the hearing, the Committee (a) (b) (c) shall require the presenter to adduce evidence that all reasonable efforts have been made, in accordance with these Rules, to serve the notice of hearing on the registrant; may, where the Committee is satisfied that the notice of hearing has been duly served, direct that the allegation should be heard and determined notwithstanding the absence of the registrant; or may adjourn the hearing and issue directions. The panel noted that the location of today s hearing had been changed a day before the hearing, on 11 October It had sight of an dated 11 October 2017 from the NMC to Mrs Caussyram, and an acknowledgment of the from Mrs Caussyram to the NMC, also on 11 October After making the relevant enquiries, Mr Bellis confirmed that Mrs Caussyram had not travelled to the original location in error. Mr Bellis told the panel that this hearing had been adjourned twice before. He asked the panel to take into account the contents of the from Mrs Caussyram to the NMC dated 11 October 2017, including where she states, As I have not managed to secure a representative, I will not be attending. He asked the panel to take into account that she had been provided with the notice of hearing longer than 28 days before the hearing and had therefore had ample time to secure a representative. 3

4 Mr Bellis invited the panel to continue in the absence of Mrs Caussyram on the basis that she had voluntarily absented himself. He submitted that Mrs Caussyram is aware of today s hearing and submitted that it is in the public interest to proceed. The panel accepted the advice of the legal assessor. The panel noted that its discretionary power to proceed in the absence of a registrant under the provisions of Rule 21 is not absolute and is one that should be exercised with the utmost care and caution as referred to in the case of R. v Jones (Anthony William), (No.2) [2002] UKHL 5. The panel also considered the submissions of the case presenter, and the advice of the legal assessor. It has had particular regard to the factors set out in the decision of R v Jones. The panel was content that Mrs Caussyram had been served with notice of the hearing. The panel considered with care the material which had been submitted by Mrs Caussyram. The panel had regard to the overall interests of justice and fairness to all parties. It noted that: no application for an adjournment has been made by Mrs Caussyram there is no reason to suppose that adjourning would secure her attendance at some future date; there is a strong public interest in the expeditious disposal of the case. The panel had not received a request to adjourn. The panel was of the view that Mrs Caussyram is aware of the charges, has chosen not to attend and in effect waived her right to attend. 4

5 In these circumstances, the panel has decided that it is fair, appropriate and proportionate to proceed in the absence of Mrs Caussyram. The panel will draw no adverse inference from Mrs Caussyram s absence in its findings of fact. Background The NMC opened a case in relation to Mrs Caussyram s fitness to practise on 27 July On 23 February 2016, Mrs Caussyram was convicted on one count of doing acts to facilitate the commission of breaches of immigration law, contrary to Section 25(1) of the Immigration Act Mrs Caussyram was a director of Carefirst 24 Limited, an agency which engaged people to work in the care industry and in hospitals. A high proportion of those people came from countries outside the EU, many of them being students from the Philippines, on tier 4 student visas. The terms of those visas are such that the holder is not permitted to work on a self-employed basis. Mrs Caussyram was convicted of engaging people to work in the UK after the expiry of the limited period for which they had been given leave to enter or remain in the UK. Mrs Caussyram was one of two directors of Carefirst 24 Limited, and as such had shared responsibilities and was accountable to the Care Quality Commission for ensuring that the company met the standards required of a fit and proper care provider. This included ensuring that checks to ensure not only that prospective carers were suitable persons for providing care to elderly and vulnerable people, but also for ensuring that they were legally entitled to work in the UK. Mrs Caussyram knew or had reasonable cause to believe that these overseas students were no longer entitled to be or work in the UK. 5

6 Decision on the findings on facts and reasons Having been provided with a copy of the memorandum of conviction the panel finds that the facts are found proved in accordance with Rule 31 (2) which states: 31 (2) Where a registrant has been convicted of a criminal offence (a) a copy of the certificate of conviction, certified by a competent officer of a Court in the United Kingdom (or, in Scotland, an extract conviction) shall be conclusive proof of the conviction; and (b) the findings of fact upon which the conviction is based shall be admissible as proof of those facts. Submission on impairment Having announced its finding on the facts, the panel then moved on to consider, whether Mrs Caussyram s fitness to practise is currently impaired by reason of her conviction. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. Mr Bellis invited the panel to take the view that Mrs Caussyram s actions amount to a breach of The Code: Standards of conduct, performance and ethics for nurses and midwives 2008 ( the Code ). He then moved on to the issue of impairment, and addressed the panel on the need to have regard to protecting the public and the wider public interest. This included the need to declare and maintain proper standards and maintain public confidence in the profession and in the NMC as a regulatory body. Mr Bellis referred the panel to the cases of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery 6

7 Council (2) Grant [2011] EWHC 927 (Admin) including the guidance set out by Dame Janet Smith in her Fifth Shipman Report which is quoted at paragraph 76 in the case of Grant. It was Mr Bellis s submission that limbs b and c of that guidance were fully engaged in Mrs Caussyram s case. Mr Bellis invited the panel to take into account Mrs Caussyram s attempt to minimise the seriousness of the charges. Mr Bellis also stated that she has not attended today s hearing, nor has she provided a written response to the charges. Mr Bellis submitted that there has been no subsequent evidence of remediation, insight and remorse demonstrated by Mrs Caussyram. He acknowledged that there has been no patient harm in this case but submitted that there is a risk of repetition of similar behaviour in the future. The panel has accepted the advice of the legal assessor. The panel noted that nurses occupy a position of privilege and trust in society and are expected at all times to be professional and to maintain professional boundaries. Patients and their families must be able to trust nurses with their lives and the lives of their loved ones. To justify that trust, nurses must be honest and open and act with integrity. They must make sure that their conduct at all times justifies both their patients and the public s trust in the profession. In this regard the panel considered the judgement of Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision, in paragraph 74 she said: 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 7

8 would be undermined if a finding of impairment were not made in the particular circumstances. Mrs Justice Cox also endorsed the impairment test set out by Dame Janet Smith in her fifth Shipman report 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. The panel determined limbs b and c of this test are engaged. Further, the panel noted The Code: Standards of conduct, performance and ethics for nurses and midwives 2008 ( the Code ) and considered Mrs Caussyram has breached the following sections: From the preamble: be open and honest, act with integrity and uphold the reputation of your profession. You must always act lawfully, whether those laws relate to your professional practice or personal life. 8

9 From the numbered standards: 49 You must adhere to the laws of the country in which you are practising. 61 You must uphold the reputation of your profession at all times. The panel acknowledged that Mrs Caussyram s actions, as evidenced by her criminal conviction, did not put patients at unwarranted risk of harm. However, the panel considered that in committing and being convicted of a serious criminal offence, Mrs Caussyram had shown a flagrant disregard for the laws of the country. The panel determined that Mrs Caussyram has in the past breached fundamental tenets of the profession. Furthermore, having been convicted of a serious criminal offence, Mrs Caussyram was sentenced to 12 months imprisonment, suspended for two years, and had brought the profession into disrepute. In considering whether Mrs Caussyram 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, the panel had careful regard to the issues of remediation and Mrs Caussyram s insight. Regarding insight, the panel reminded itself that although Mrs Caussyram was not directly involved in employing members of staff, she knew or had reasonable cause to believe that breaches of immigration law were being committed during their employment. The panel noted that Mrs Caussyram did nothing to prevent these breaches from occurring. The panel also took into account that Mrs Caussyram ticked No when asked whether she admitted the facts alleged in the charge, upon completing the NMC Standard Directions Form in September This date was after being found guilty of the charge within the Crown Court. The panel also noted comments made by Mrs 9

10 Caussyram in the Standard Directions Form, in which she stated I think I have been punished enough. It was of the view that this demonstrated a lack of insight. The panel also noted comments from Mrs Caussyram in her to the NMC dated 11 October She stated that there were a handful of overstayers in the Company. The panel noted there were 12 workers who continued to work beyond the time when their visas expired and concluded that Mrs Caussyram s comments sought to minimise the situation. The panel was of the view that this demonstrated a lack of understanding as to the gravity of the situation. Mrs Caussyram has not produced any evidence of meaningful insight, remorse or remediation in regards to her behaviour. She has not shown any reflection. This leads the panel to conclude that there is evidence of behaviour or attitudinal issues which would pose a real risk that she will repeat similar behaviour in the future, albeit under different circumstances. The panel considered that in view of the nature of the conduct giving rise to the conviction, public confidence in the profession would be seriously undermined if a finding of impairment were not made in this case. The panel was of the view that there was nothing to suggest that Mrs Caussyram understands that what she did was wrong or that she has any insight into the potential damage to the reputation of the nursing profession resulting from her behaviour. Rather, her reflections on impact focused on herself and her family. In the light of these conclusions, the panel had no doubt that the need to uphold proper professional standards of conduct and behaviour, and the need to maintain public confidence in the profession and in the NMC as its regulator would be seriously undermined if a finding of impairment were not made in this case. 10

11 Accordingly, the panel determined that Mrs Caussyram s fitness to practise is currently impaired. Determination on sanction: Having determined that Mrs Caussyram s fitness to practise is currently impaired, the panel considered what sanction, if any, it should impose on her registration. The panel has considered this case very carefully and has decided to make a strikingoff order. Mr Bellis 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. In regards to sanction Mr Bellis submitted it was the panel s professional independent judgement as to what sanction to impose. 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 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: 11

12 Mrs Caussyram s actions were persistent and took place over a protracted period of time. Mrs Caussyram made financial gain. There has been no meaningful insight or understanding shown by Mrs Caussyram into the effect of her actions. There has been a lack of remorse demonstrated by Mrs Caussyram. Mrs Caussyram was in a position of responsibility as director of a company. Her actions involved serious departures of the standards expected of a registered nurse. Mrs Caussyram has maintained focus upon how her actions impacted herself and her family, not how they impacted upon the reputation of her profession or the potential harm to the students hired by the company. Mrs Caussyram disputed the facts of the charges and that her fitness to practise was impaired even after her Crown Court judgement. The panel identified the following mitigating features: Mrs Caussyram had an unblemished nursing career of 25 years until these incidents. There are no concerns regarding her clinical practice. Mrs Caussyram faces potential hardship. Mrs Caussyram s self-identified passion for nursing. The panel then considered what, if any, sanction was appropriate. The panel first considered taking no action and concluded that taking no action would be wholly inappropriate. The panel concluded that a conviction of this nature demands that a sanction be imposed to mark the serious departure from the professional standards of registered nurses. 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. 12

13 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 Mrs Caussyram s conviction was not at the lower end of the spectrum. The panel decided that a caution order would be neither appropriate nor sufficient to maintain public confidence in the profession. The panel next considered whether placing conditions of practice on Mrs Caussyram s 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. It noted that no concerns have been raised relating to Mrs Caussyram s clinical practice. The panel bore in mind however that there are attitudinal issues which include a lack of insight and remorse demonstrated by Mrs Caussyram. It also took into account that this case involved a criminal conviction. The panel determined that this matter could not be addressed by a conditions of practice order. It 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 Mrs Caussyram s actions, and would not maintain confidence in the nursing profession and the NMC as its regulator. The panel went on to consider a suspension order. The NMC panel has had no evidence which demonstrates insight by Mrs Caussyram into the impact of her conviction on the profession as a whole. The panel was concerned with Mrs Caussyram s attidunal issues, her minimising of her role and the seriousness of the offence. The panel took into account that Mrs Caussyram has engaged with the proceedings but has failed to understand the importance of these proceedings and the impact of her 13

14 actions. Mrs Caussyram failed to act responsibly in her position as a director and has demonstrated very little remorse, reflection or remediation. The panel concluded that in these circumstances, a suspension order, whilst it would protect the public whilst it was in force, would be insufficient to upholding the trust and confidence in the nursing profession. Mrs Caussyram s conduct amounted to a serious departure from the standards expected of a registered nurse. The panel determined that her behaviour in this case was so serious that a suspension order would not be sufficient to mark the charge found proved in order to satisfy the public interest, and would not be 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? The panel considered Mrs Caussyram s actions to be an abuse of position and a significant departure from the standards expected of a registered nurse. The panel considered that Mrs Caussyram s actions as detailed in her conviction formed part of a sophisticated enterprise and had been protracted. 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 conviction, in order to declare and uphold proper professional standards for registered nurses and maintain public confidence in the profession and the regulatory process. 14

15 It directs the registrar to strike Mrs Caussyram off the register. The effect of this order is that the NMC register will show that Mrs Caussyram has been struck-off the register. Determination on Interim Order Mr Bellis on behalf of the NMC submitted that an interim order should be made. 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. 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. Not to make an interim order would be incompatible with the panel s earlier findings. 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, Mrs Caussyram has not lodged an appeal, the interim order will lapse and be replaced by the substantive order. On the other hand, if Mrs Caussyram does lodge an appeal, the interim order will continue to run until the conclusion of the appeal. That concludes this determination 15

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