Nursing and Midwifery Council Fitness to Practise Committee. Substantive Meeting 14 August 2018

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Meeting 14 August 2018 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: NMC PIN: Michael Brown 07G0606E Part(s) of the register: Registered Nurse Sub Part 1 Adult nursing May 2008 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: England Conviction Hilary Nightingale (Chair, lay member) Mary Monnington (Registrant member) Alex Forsyth (Lay member) Ian Ashford-Thom Ruth Bass Facts proved by admission: 1 Facts not proved: Fitness to practise: Sanction: Interim Order: None Impaired Striking off order Suspension order 18 months Page 1 of 14

2 Details of charge: That you, a registered nurse: 1) on 22 December 2017, in the Crown Court at Cambridge, were convicted of intentionally encourage/assist a commission of an indictable offence x3. AND, in light of the above, your fitness to practise is impaired by reason of your conviction. Page 2 of 14

3 Decision on Service of Notice of Meeting The panel was informed that written notice of this meeting had been sent to Mr Brown s registered address by recorded delivery and by first class post on 12 July 2018 in accordance with the requirements of Rules 11A and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the Rules ). The panel was also informed that the notice stated that the meeting will take place on or after 17 August The legal assessor advised the panel that Mr Brown had been given 28 days notice in accordance with the Rules and that good service had been provided. He referred to R v Ashton, Draz and O Reilly (2006) EWCA Crim 794 and advised the panel that the reference to 17 August 2018 did not invalidate service. The panel accepted the advice of the legal assessor. The panel was satisfied there was no prejudice to Mr Brown and decided to proceed. In light of all of the information available, the panel was satisfied that Mr Brown has been served with notice of this hearing in accordance with the requirements of Rules 11A and 34. It noted that Mr Brown had responded to the notice on 19 July 2018, and that his representative, Mr 1, had written to the NMC on 16 July 2018 and sent an on 12 August The panel was satisfied that it had received the information from Mr Brown that he wished the panel to consider. The panel also noted that Mr Brown had been given the required 28 days notice. It was therefore satisfied that the notice had been served in accordance with the Rules and determined to proceed with the meeting. Page 3 of 14

4 Background On 22 December 2017, Mr Brown was convicted of three counts of intentionally encourage/assist a commission of an indictable offence. It was stated by the Crown Court sentencing judge that Mr Brown had entered an internet meeting room and watched indecent images of children being streamed online, which was capable of encouraging or assisting the commission of an offence, namely sharing indecent images of children intending to encourage or assist in its commission. Decision on the findings on fact and reasons The panel accepted the advice of the legal assessor. The charge concerns Mr Brown s conviction and, having been provided with a copy of the Certificate of Conviction, the panel finds that the fact is found proved in accordance with Rule 31 (2) and (3) of the Rules 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 he is not the person referred to in the certificate or extract. The panel also noted the admission made by Mr Brown in the response to charges form dated 19 July 2018, that he was convicted as set out in the charge. Page 4 of 14

5 Decision on impairment The panel next went on to decide if, as a result of this conviction, Mr Brown s 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) ( Grant ) 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 view the test would be equally applicable to other practitioners governed by different regulatory schemes. Page 5 of 14

6 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. The panel considered limbs (a), (b) and (c) of Grant to be applicable in Mr Brown s case with regard to the past and the future. With regard to limb (a), the panel was of the view that although Mr Brown is an adult nurse, there were areas within nursing practice where he could have access to children, and as such was liable to put patients at risk of harm. With regard to limb (b), the panel had regard to the Police report dated 7 May 2017 which states Moreover an image of prv poppers can clearly be seen on the footage, and is indeed BROWN. During this period, which covered 00.25hrs to 00.36hrs on 15/07/2015 IIOC [Indecent Images of Children] of Category A and B grading were streamed to the room He visited the Zoom chatroom on three occasions between 21/07/2015 and 01/12/2015, for a cumulative total period of nearly 3 hours. During these periods both pre-recorded IIOC and the live rape of a six year old child were streamed to the group. BROWN had the usernames perv, pervnpoppers and popperv Page 6 of 14

7 n perv... The panel determined that Mr Brown had brought the profession into disrepute by his actions. With regard to limb (c), the panel had regard to The Code: Professional standards of practice and behaviour for nurses and midwives (2015) and determined that Mr Brown had breached fundamental tenets of the profession; to uphold the reputation of the profession at all times and 20.4 keep to the laws of the country in which you are practising. The panel carefully considered all the documentation in this case, including those sent by Mr Brown s representative, Mr 1. In particular it noted the comments in Mr 1 s letter dated 16 July 2018 that: 4. During this time Michael was advised to plead guilty to minimise costs and a custodial sentence. The most likely result of which, would result in a suspended sentence. At the time Michael was only pleading guilty to being in a legal chatroom, where events were taking place elsewhere and he was not participating in them. The charge when it was finally made was usually applied to terrorists and carries a minimum sentence of four years. 5. Michael is a model prisoner who has been given a priority job, he has earned three green enhancement cards with privileges and he is waiting for confirmation that he has been downgraded to a category D prisoner. This should mean a move to an open prison in the near future. 6. Michael has an exemplary record in nursing which he loves and is absolutely no risk to staff or patients in his care. Furthermore he has never been in any kind of trouble in his life. With regard to insight, the panel noted Mr Brown s comments dated 22 March 2018 which states: Page 7 of 14

8 I wish to make it clear that I have not and NEVER have been accused of being in possession, searching for or downloading and storing any illegal material. At the time I was in a legal chatroom along with many others. I was later informed by the N.C.A (National Crime Agency) that some individuals were using this room to commit an offence. By me solely being in that chat room the C.P.S has classed that as encouragement for somebody else to commit a crime. As I was in the chat room I had no choice but to plead guilty to being there (which the C.P.S class as encouragement). My only offence is being in a chatroom when somebody else was committing a crime. Notwithstanding these comments and Mr Brown s engagement with these proceedings, the panel had regard to the extremely serious nature of the conviction and had no reason to go behind the conviction or the facts of the offences as described the Crown Court Judge when sentencing. The panel had regard to the sexual nature which underlined the conviction. It had regard to the sentencing remarks of His Honour Judge G Hawkesworth which stated: By taking part in that chatroom, and in that group viewing those images, and making comments about what were being seen in appreciative terms, you were, in effect, present, assisting and encouraging the distribution of that image to others, and you are in no different position than any other person who is charged with aiding and abetting the commission of an offence. And these offences were truly horrific. It is hard to understand how somebody like you of good character should have indulged in such depraved amoral and consciousless - conscienceless behaviour in viewing babies as young as two being anally and vaginally and orally raped, and expressing pleasure at seeing such images. It is quite evident from the material found on your computer that you have a paedophiliac interest in very young children. From the images viewed, it would appear that you are not concerned whether they are male or female. Page 8 of 14

9 The panel was of the view that Mr Brown had sought to minimise his engagement in the offence and as such determined that Mr Brown has demonstrated no insight into his behaviour. The panel had regard to the fact that Mr Brown is now subject to a sexual harm prevention order to limit access to his internet use in the future. It is of the view that there is still a high risk of repetition of the behaviour which led to the conviction borne out by Mr Brown s the lack of insight into his behaviour. Accordingly the panel concluded that a finding of impairment is required on the ground of public protection. 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/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 determined that, in this case, a finding of impairment on public interest grounds is required. The panel also had regard to fact that Mr Brown had been given a four year sentence marking the gravity of the offence, and the fact that Mr Brown was now a convicted sex offender. The panel was of the view that the offence was so serious that members of the public would find it deplorable if a finding of impairment on public interest grounds were not made and would jeopardise public confidence in the profession. Having regard to all of the above, the panel was satisfied that Mr Brown s fitness to practise is currently impaired. Determination on sanction: The panel has considered this case very carefully and has decided to make a strikingoff order. It directs the registrar to strike Mr Brown off the register. The effect of this order is that the NMC register will show that Mr Brown 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 accepted the advice of the legal assessor. The panel Page 9 of 14

10 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 has considered all the available sanctions in ascending order starting with the least restrictive. 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. 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 Brown s actions were not at the lower end of the spectrum and that a caution order would be inappropriate in view of the seriousness of the case. Further, it noted that such an order would not deal with the public protection concern identified. The panel therefore decided that it would be neither appropriate nor in the public interest to impose a caution order. The panel next considered whether placing conditions of practice on Mr Brown s registration would be a sufficient and appropriate response. The panel noted that the concerns identified are not competency based and include issues which could not be addressed by a conditions of practice order. Furthermore, the panel considered that the placing of conditions on Mr Brown s registration would not adequately address the seriousness of this case nor uphold the wider public interest. It therefore determined that a conditions of practice order would not be the appropriate or proportionate sanction in this case. Page 10 of 14

11 The panel then went on to consider whether a suspension order would be an appropriate sanction. The SG sets out key considerations in relation to suspension, these are: does the seriousness of the case require temporary removal from the register? will a period of suspension be sufficient to protect patients and the public interest? This sanction may be appropriate where the misconduct is not fundamentally incompatible with continuing to be a registered nurse or midwife in that the public interest can be satisfied by a less severe outcome than permanent removal from the register. The panel was of the view that: There is evidence of harmful deep seated personality or attitudinal problems by the very nature of the actions which led to the conviction. Mr Brown has not demonstrated any insight and there is consequently a risk of these actions being repeated. The panel is of the view that Mr Brown s conduct was such a serious departure from the standards expected of a registered nurse that it is not satisfied that a period of suspension would satisfy the public interest or uphold public confidence in the profession or the NMC. Finally, in looking at a striking-off order, the panel took note of the following from the SG: can public confidence in the professions and the NMC be maintained if the nurse or midwife is not removed from the register? Page 11 of 14

12 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 factors. A serious departure from the relevant professional standards as set out in key standards, guidance and advice.. Any serious misconduct of a sexual nature including involvement in child pornography... Persistent lack of insight into seriousness of actions or consequences. Convictions or cautions involving any of the conduct or behaviour in the above examples. The panel determined that the points listed above were engaged in this case. The panel also had regard to the sexual misconduct section within the SG which states: 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. Page 12 of 14

13 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. It will be a relevant factor that any conviction relating to child pornography will lead to registration as a sex offender and possible disqualification from working with children. The criminal courts identify degrees of seriousness in relation to child pornography offences. However, in the fitness to practise context, any conviction for child pornography is a matter of serious concern because it involves such a fundamental breach of trust and damages the reputation of the professions. In all cases of serious sexual misconduct, it will often be the case that the only proportionate sanction will be a striking-off order. Decisions to impose sanctions other than a striking-off order, will need to be particularly carefully explained, so that the reasons can be understood by those who have not heard all of the evidence in the case. Accordingly, the panel determined that Mr Brown s actions were significant departures from the standards expected of a registered nurse, and are fundamentally incompatible with Mr Brown remaining on the register. The panel was of the view that the findings in this particular case demonstrate that Mr Brown s actions were so serious that 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 during this case, 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 Brown 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 has 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 Page 13 of 14

14 profession a clear message about the standard of behaviour required of a registered nurse. Determination on Interim Order The panel next considered whether an interim order should be made on the grounds that it is necessary for the protection of the public and is otherwise in the public interest. 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 order will be replaced by a striking-off order 28 days after Mr Brown is served with the decision of this hearing in writing. That concludes this determination. Page 14 of 14