Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 02 November 2018 Nursing and Midwifery Council, 2 Stratford Place, London E20 1EJ Name of registrant: NMC PIN: Romeo Berina 03A0588O Part(s) of the register: Registered Nurse Sub Part 1 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Mr Berina: Nursing and Midwifery Council: England Conviction Tim Skelton (Chair, lay member) Donna Hart (Registrant member) Bernie Nipper (Registrant member) Mark Sullivan Luke Stockmans Present and represented by Ms Bostock, counsel on behalf of the Royal College of Nursing (RCN) Represented by Karen Tarling, Case Presenter Facts proved by admission: 1 Fitness to practise: Sanction: Interim Order: Impaired A caution order for 2 years N/A 1
Details of charge: That you, a registered Nurse, 1. On 4th October 2017 at Sussex (Eastern) Magistrates Court was convicted of driving a vehicle after consuming so much alcohol that the proportion of it in your breath, namely 120ulg, exceeded the prescribed limit. And your fitness to practise is impaired by reason of your conviction 2
Background You are currently employed as a Band 5 registered nurse by Normanhurst Nursing Home (The Home) in Bexhill. On 17 September 2017 you were found to be driving a motor vehicle when your alcohol level was above the limit. You had been attending a social event. The level of alcohol in your breath was 120ulg. You were convicted at Hastings Magistrates Court on 4 October 2017 and received a 12 week prison sentence, suspended for 12 months. You were disqualified from driving for 36 months but the Court agreed to your disqualification being shortened by 36 weeks provided you complete an approved course for drink-drive offenders. You successfully completed that course. You also have a previous conviction for a similar offence that took place 12 years earlier. Decision on the findings on facts and reasons At the start of this hearing you admitted the following charge; That you, a registered Nurse, 1. On 4th October 2017 at Sussex (Eastern) Magistrates Court was convicted of driving a vehicle after consuming so much alcohol that the proportion of it in your breath, namely 120ulg, exceeded the prescribed limit. This was therefore announced as proved. 3
Submission on impairment: The panel then moved on to consider whether your fitness to practise is currently impaired. There is no statutory definition of fitness to practise. However, the NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. To assist the panel in its consideration of impairment, Ms Tarling, on behalf of the Nursing and Midwifery Council (NMC), provided the panel with a bundle of documents dated 4 October 2017, these included: a suspended sentence order, a notice about reduction in disqualification, a notice of fine and collection order and a notice of disqualification from driving. Also included in the bundle was a letter from your GP dated 19 March 2018. Ms Bostock, on your behalf, provided the panel with a bundle of documents which included the following: A certificate of completion of a drink driving rehabilitation course, Your Road Ahead dated 1 February 2018 and its associated paperwork, a number of testimonials both professional and personal including a letter dated 11 October 2018 from your Responsible Officer, three written reflective statements and a testimonial written by your wife. You gave evidence to the panel. You told the panel of the details regarding your most recent offence and said that you now very rarely drank alcohol if at all. You spoke about the impact your actions have had, specifically on your family and that you understood that this was your last chance. You also talked about the drink driving rehabilitation course you completed and how it had taught you coping strategies and made you understand the very serious consequences your actions could have had. You said that you would not repeat your mistake as you would lose your family and your job. Further you stated that you loved your job and your profession and that you understood the impact your offence would have on the reputation of the nursing profession as well as 4
the impact it would have on the patients in your care and the wider public interest. You clearly demonstrated remorse and said that you would not repeat your misconduct. Ms Tarling submitted that a finding of impairment on the grounds of public interest is required. She submitted that your conviction calls into question the integrity of the NMC register and the registration for nursing professionals.. Ms Tarling referred the panel to the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) and also the case of Cohen v GMC (2008) EWHC 581 (Admin). She also submitted to the panel the relevant paragraphs of the NMC Code, (The Code 2015), professional standards of practice and behaviour for nurse and midwives, your conviction is said to have breached. She submitted that your offence of drink driving was serious and has brought the nursing profession into disrepute. She reminded the panel that you had committed a similar offence some 12 years ago. Ms Tarling submitted that your actions had breached the fundamental tenets of the profession, namely to uphold the reputation of the profession. Ms Tarling submitted that whilst the panel has an assurance that you fully appreciate that what you did was wrong and that it is unlikely it will happen again, it must bear in mind the seriousness of your conviction and that when arrested you were some way over the legal limit for driving after consuming alcohol. Ms Tarling submitted that whilst there are no clinical concerns regarding your practice, the panel may consider your conviction demonstrates an attitudinal issue. In all the circumstances, Ms Tarling submitted that the public confidence in the profession and the NMC as its regulator would be considerably undermined if a finding of impairment on public interest grounds is not found. 5
Ms Bostock on your behalf submitted that whilst your fitness to practice was impaired during the currency of your suspended sentence, you have now served that sentence and are not currently impaired. She reminded the panel that it needed to consider impairment as of today. Ms Bostock told the panel that you are clearly very remorseful of your actions. She told the panel that you have in no way tried to diminish the seriousness of what you did and entirely accept that what you did was wrong. Ms Bostock said that your conviction has had a huge impact on you and your family. She referred the panel to the bundle of documents she had provided and highlighted the positive testimonials, including one from a patient, that attest to your good and trusted clinical practice and the letter from your Responsible Officer confirming your completion of your Suspended Sentence Order and calling it a massive achievement. She submitted that having regard to all of the circumstances of the case including your oral evidence, your completion of the drink driving rehabilitation course and the positive comments of your Responsible Officer, you have now demonstrated a high level of remediation and that your level of insight is significantly different to what it was at the time of your first conviction for drink driving some 12 years ago. Ms Bostock submitted that a fully informed member of the public, knowing how remorseful you are and knowing what steps you have taken to remediate, would understand that it would be in the public interest to have a nurse who has learnt from his mistakes and been through the regulatory proceedings to be on the register unrestricted. She submitted that there have been no concerns raised in relation to your practice either prior to the conviction or since. She also said that looking forward, it is highly unlikely that you will bring the nursing profession into disrepute and repeat your actions. Ms Bostock submitted that your fitness to practice is no longer impaired. 6
The panel accepted the advice of the legal assessor. Decision on impairment The panel next went on to decide if as a result of this conviction your fitness to practise is currently impaired. The panel considered the following paragraphs of the Code 2015 were engaged in your case: 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 20.4 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, midwives and nursing associates to aspire to The panel considered that nurses occupy a position of privilege and trust in society and are expected at all times to be professional. 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
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 25.67 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. 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. 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 finds that limbs b and c are engaged as a result of your conviction. 8
The panel noted that in your oral evidence you spoke of how you understood the very serious consequences your actions could have had and how you would never make such a mistake again. During your oral evidence the panel also considered that you showed a high degree of sincerity and genuine remorse when reflecting upon the implications of your actions. Regarding insight, the panel considered that you have demonstrated significant remorse and have accepted that your conduct was wrong. It is of the view that you clearly regret the impact your actions have had on your family and your personal circumstances. The panel also considered that you have developed insight into how your actions have impacted on your patients, colleagues and the reputation of the profession. In its consideration of whether you have remediated your practice the panel took into account the certification and associated paperwork that demonstrated you had completed the drink driving rehabilitation course. It also noted the positive comments of your Responsible Officer as well as the recent positive testimonials from a patient whom you had cared for. The panel also took into account that you have been working as a registered nurse in a busy elderly care home where you are a valued member of staff. The panel noted that there are no concerns regarding your clinical practice. The panel took into account that you have a similar earlier conviction and therefore needs to be satisfied that unlike on the previous occasion, there will be no repetition of your behaviour. The panel notes that following this conviction you have completed a comprehensive rehabilitation course and appear to have a much clearer understanding of how to avoid this type of conduct in the future. It also accepts that you now fully recognise the effect of any further such conduct on your part would have on your family and career. It therefore concludes that the risk of repetition is now minimal. However, the panel remained mindful that you were convicted for driving a motor vehicle when well above the alcohol limit. The panel is of the view that this was a 9
serious criminal offence which put yourself, your child and members of the public at the potential risk of harm. The panel also noted that you have a previous conviction for a similar offence that took place 12 years earlier. Whilst the panel was mindful of the positive insight and remediation you have demonstrated today, it also bore in mind that the overarching objectives of the NMC is 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. It therefore determined that a finding of impairment on public interest grounds was required. Having regard to all of the above, the panel was satisfied that your fitness to practise is currently impaired. Determination on sanction: The panel has considered this case carefully and has decided to make a caution order for a period of 2 years. The panel was satisfied that such an order adequately addresses the public interest and conveys a clear message that your actions were unacceptable, a clear departure from appropriate standards of conduct and behaviour of a nurse or midwife and, as such, must not be repeated. In reaching this decision, the panel has had regard to all the evidence that has been adduced in this case as well as the submissions of Ms Tarling, on behalf of the NMC and Ms Bostock, on your behalf. The panel 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 SG published by the NMC. It 10
recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. Before making its decision on sanction, the panel considered what the aggravating and mitigating features were. Aggravating: This was your second offence for driving a motor vehicle under the influence of alcohol Mitigating: You have demonstrated considerable remorse, insight and have remediated the conduct which led to your conviction You have fully complied with the criminal sanction including successfully completing a rehabilitation course. The panel agreed that it was not appropriate to take no further action. Your actions had brought the nursing profession into disrepute and undermined public confidence in the nursing profession and NMC as regulator. As there were no identifiable areas in your clinical practice in need of assessment or retraining, a conditions of practice order would not be appropriate in this case. The panel therefore considered whether a caution order or a suspension order would be the most appropriate sanction. The panel considered your oral evidence which demonstrated considerable insight and genuine remorse for your actions. It noted the certification for the rehabilitation course you had completed, as well as the positive testimonials, including a letter from your Responsible Officer. The panel concluded therefore that the risk of repetition in this case to be minimal and as such, determined that a suspension order would be 11
disproportionate and would prevent the public from benefiting from the good practice of a clearly competent and experienced nurse. The panel noted that whilst your misconduct was not at the lower end of the spectrum, you have already been punished for your criminal offence. The purpose of the sanction was purely to mark the fact that this was your second drink driving offence and any further offence will be taken extremely seriously by the regulator. The panel therefore agreed that in all the circumstances a caution order for a period of 2 years was the appropriate sanction. The panel noted that as you have served your criminal sentence, such an order would adequately address the public interest and convey a clear message that your actions were unacceptable, a clear departure from appropriate standards of conduct and behaviour of a nurse and midwife and, as such, must not be repeated. That concludes this determination. 12