Nursing and Midwifery Council Fitness to Practise Committee

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Meeting Friday, 27 April 2018 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: NMC PIN: Mr Adekunle Adepoju Dada 09F2101E Part(s) of the register: Registered Nurse Sub-part 1 Adult Nursing Level 1 13 October 2009 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: England Conviction Mr Tim Mann (Chair, Lay member) Mr Alister Campbell (Registrant member) Mr James Hurden (Lay member) Mr Nigel Ingram Mr Philip Austin Facts proved: Charge 1 Facts not proved: Fitness to practise: Sanction: Interim Order: None Currently impaired Striking-off order Interim suspension order 18 months 1

2 Details of charge: That you, a registered nurse: 1. Were convicted at the Crown Court at Snaresbrook on 31 July 2017 for one count of sexual assault of a female child under 13, one count of rape of a female child under 13 by a male and 4 counts of rape of a female. AND, in light of the above, your fitness to practise is impaired by reason of your conviction. 2

3 Decision on Service of Notice of meeting: The panel received information from the legal assessor concerning service of the notice of meeting. Notice of the meeting was sent to Mr Dada s registered address by first class post and by recorded delivery on 19 March 2018 stating that a meeting would be held on or after 23 April The Royal Mail Track and Trace print out indicated that the notice of meeting was delivered to Mr Dada s registered address on 20 March 2018 and signed for by someone with the printed name of L RYAN. The panel had sight of the NMC on-table which consisted of two letters dated 9 April 2018 and 10 April 2018 sent by Mr Dada to the NMC case officer. In his letter dated 9 April 2018, Mr Dada acknowledges receipt of the notice of meeting and states Thanks for your letter dated 19/3/18. More so, I do appreciate the decision to conduct the hearing in private. The panel heard and accepted the advice of the legal assessor. The panel concluded that the appropriate notice had been sent by recorded delivery more than 28 days before this meeting and therefore that service had been effected in accordance with Rule 34 and 11A of the Fitness to Practise Rules 2004 (as amended) ( the Rules ). 3

4 Background [PRIVATE] Following the Police investigation, the CPS charged Mr Dada with multiple offences of Sexual Assault and Rape [PRIVATE]. Mr Dada was convicted on 31 July 2017 of one count of Sexual Assault of a female child under 13, one count of Rape of a female child under 13 by a male and four counts of Rape of a female. Mr Dada was sentenced to a total of 17 years imprisonment with a requirement to sign the Sex Offenders Register until further notice. 4

5 Decision on the findings on facts and reasons Having been provided with a copy of the Certificate of Conviction dated 31 July 2017 which confirmed that Mr Dada had been convicted of the offences as outlined in the charges, the panel found the facts of charge 1 proved in accordance with Rule 31 (2) which states: (2) Where a registrant has been convicted of a criminal offence (a) (b) 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 the findings of fact upon which the conviction is based shall be admissible as proof of those facts. (3) The only evidence which may be adduced by the registrant in rebuttal of a conviction certified or extracted in accordance with paragraph (2)(a) is evidence for the purpose of proving that she is not the person referred to in the certificate or extract. The panel heard and accepted the advice of the legal assessor. He advised the panel that they should not look behind Mr Dada s conviction, notwithstanding that there was a suggestion that Mr Dada intended to appeal. Further, he advised that Mr Dada s appeal was at such an embryonic stage that it required no more enquiry by the panel. In conclusion, the legal assessor did say that the matter might have been different if the appeal had been placed before the single judge in the Court of Appeal and leave to appeal had been granted. The panel noted that Mr Dada was tried and convicted upon indictment of one count of Sexual Assault of a female child under 13, one count of Rape of a female child under 13 by a male and four counts of Rape of a female. 5

6 The panel therefore found charge 1 proved by way of Mr Dada s conviction. 6

7 Decision on impairment The panel next went on to decide if, as a result of Mr Dada s conviction, his fitness to practise is currently impaired. Nurses occupy a position of privilege and trust in society and are expected at all times to be professional and to maintain professional boundaries. Patients and their families must be able to trust nurses with their lives and the lives of their loved ones. To justify that trust, nurses must be honest and open and act with integrity. They must make sure that their conduct at all times justifies both their patients and the public s trust in the profession. In this regard the panel considered the 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 would be undermined if a finding of impairment were not made in the particular circumstances. Mrs Justice Cox went on to say in Paragraph 76: I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph she identified the following as an appropriate test for panels considering impairment of a doctor s fitness to practise, but in my 7

8 view the test would be equally applicable to other practitioners governed by different regulatory schemes. Do our findings of fact in respect of the doctor s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he: a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or 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 finds that all of the limbs in the case of Grant are engaged. The panel also considered Mr Dada s action to have breached the following provisions of The code: Standards of conduct, performance and ethics for nurses and midwives 2008 ( the Code ): 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 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 noted that the charge does not relate to Mr Dada s nursing practice, nor do they relate to events that occurred within a clinical environment. The panel noted that Mr Dada s conviction stems from incidents of a sexual nature which it considered to be extremely serious and was continued for a prolonged period of time, some four years in total. It also considered the charge to relate to a person who was particularly vulnerable due to her age [PRIVATE]. The panel took account of Judge Canavan s sentencing remarks at Snaresbrook Crown Court on 31 July 2017, as she is recorded as saying: [PRIVATE] The panel had regard to Mr Dada s letter of response to the notice of meeting dated 9 April 2018 which was sent to the NMC case officer. The panel noted from this letter that Mr Dada does not accept his conviction and that this is also supported by the fact that he has ticked no in direct response to the charge put to him by the NMC. The panel further noted that Mr Dada appears to be appealing his conviction. The panel noted that in his letter, Mr Dada stated: anything that its foundation was built on lies and deception, would require multiple lies to cover up the truth. In my case, everything was/is based on lies through to the trial and sentence. In light of the above, the panel considered Mr Dada to have no insight into his conviction, as he does not accept his conviction. Further, it considered Mr Dada to have 9

10 demonstrated no remorse and no remediation. Therefore, the panel was of the view that a real risk of repetition remains of the events that led to Mr Dada s conviction, and as such, a risk of unwarranted harm remains to people in Mr Dada s care. The panel bore in mind that the overarching objectives of the NMC are to protect, promote and maintain the health, safety and well-being of the public and patients, and to uphold and protect the wider public interest, which includes promoting and maintaining public confidence in the nursing and midwifery professions and upholding the proper professional standards for members of those professions. The panel considered that, in this case, a finding of impairment on public interest grounds was required. The panel determined that public confidence in the nursing profession would be irreparably damaged if a nurse who had been convicted of one count of Sexual Assault of a female child under 13, one count of Rape of a female child under 13 by a male and four counts of Rape of a female was not found currently impaired. Having regard to all of the above, the panel was satisfied that Mr Dada s fitness to practise is currently impaired. 10

11 Determination on sanction: The panel has considered this case carefully and has decided to make a striking-off order. It directs the registrar to strike Mr Dada s name off the register. The effect of this order is that the NMC register will show that Mr Dada has been struck-off the register. In reaching this decision, the panel has had regard to all the evidence that has been adduced in this case. The panel heard and accepted the advice of the legal assessor. The panel has borne 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 judgement. The panel considered the following aggravating factors: - The victim was a young and extremely vulnerable person. - Serious and prolonged nature of the offending. - Total absence of insight, remorse and admission. - Found to have lied at the Crown Court by a judge and jury. The panel considered there to be no mitigating factors in this case. The panel had specific regard to the case of CHRE v GDC & Fleischmann[2005] EWHC 87 (Admin), in which it was said that: As a general principle (except in cases involving relatively trivial matters such as time allowed for payment of a fine, or disqualification from driving), where a nurse or a midwife has been convicted of a serious criminal offence or offences, they should not be permitted to resume their practice until they have satisfactorily completed their sentence. Only circumstances which plainly justify a different 11

12 course should permit otherwise. The reasoning behind this principle is not to punish the nurse or midwife whilst they are serving their sentence, but that good standing within the nursing or midwifery professions needs to be earned if the reputation of the profession is to be maintained. In light of the above, the panel was of the view that no further action, a caution order and a conditions of practice order were all inappropriate in the circumstances. Further, in considering the possibility of a suspension order, the panel was of the view that Mr Dada s conviction could not be regarded as trivial as the criminal activity was a course of conduct which was extremely serious and persisted over a prolonged period of time, resulting in a custodial sentence for 17 years. It followed that if the panel was to impose a suspension order, it would expire prior to the conclusion of the operational period of Mr Dada s sentence of imprisonment. This would be contrary to the principle laid down in Fleischmann. The panel therefore determined that a suspension order would not be an appropriate sanction. In any event, the panel was of the view that the findings in this particular case demonstrate that Mr Dada s actions were extremely serious and to allow him to continue practising as a registered nurse would undermine public confidence in the profession and in the NMC as a regulatory body. The panel had specific regard to the SG in relation to strike-off. 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 factors. A serious departure from the relevant professional standards as set out in key standards, guidance and advice. 12

13 Doing harm to others or behaving in such a way that could foreseeably result in harm to others, particularly patients or other people the nurse or midwife comes into contact with in a professional capacity. Harm is relevant to this question whether it was caused deliberately, recklessly, negligently or through incompetence, particularly where there is a continuing risk to patients. Harm may include physical, emotional and financial harm. The seriousness of the harm should always be considered. Abuse of position, abuse of trust, or violation of the rights of patients, particularly in relation to vulnerable patients. Any serious misconduct of a sexual nature, including involvement in child pornography. Any violent conduct, whether towards members of the public or patients, where the conduct is such that the public interest can only be satisfied by removal. Dishonesty, especially where persistent or covered up. Persistent lack of insight into seriousness of actions or consequences. Convictions or cautions involving any of the conduct or behaviour in the above examples. Furthermore, the panel also took account of the SG in relation to sexual misconduct: The misconduct will be particularly serious where there is an abuse of the special position of trust which the nurse or midwife holds, or where the nurse or midwife is required to register as a sex offender. Although the level of risk to patients will need to be given careful consideration, sexual misconduct seriously undermines public trust in the professions. Sexual offences include accessing, viewing, or other involvement in child pornography, which involves the abuse or exploitation of a child. These types of offences gravely undermine patients and the public s trust in the profession and seriously impact on the reputation of the professions 13

14 In all cases of serious sexual misconduct, it will be often be the case that the only proportionate sanction will be a striking-off order. The panel considered Mr Dada s actions to be fundamentally incompatible with ongoing registration. With this in mind, and taking into particular account of the decision in Fleischmann, the panel concluded that the only option available to it was to impose a striking-off order. 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 effect of this order is that the NMC register will show that Mr Dada has been struckoff the register. 14

15 Determination on Interim Order The panel accepted the advice of the legal assessor. The panel considered the imposition of an interim order and determined that an interim order is necessary on the grounds of public protection and 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 suspension 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 order will be replaced by the striking-off order 28 days after Mr Dada is sent the decision of this hearing in writing. That concludes this determination. 15