Nursing and Midwifery Council Fitness to Practise Committee Substantive Order Review Hearing 1 December 2017 Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH Name of registrant: NMC PIN: Mr Paul Vincent Flynn 89C0052S Part(s) of the register: Registered Nurse Sub Part 2 General Nursing October 1990 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Mr Flynn: Nursing and Midwifery Council: Order being reviewed: Scotland Conviction Julia Thompson (Chair, Registrant member) Susan Tokley (Registrant member) Bill Matthews (Lay member) Graeme Henderson Tafadzwa Taz Chisango Present but not represented Represented by Ms Samantha Forsyth, counsel, instructed by NMC Regulatory Legal Team. Suspension Order, 12 months Outcome: Conditions of practice order for a period of 2 years, to come into effect upon expiry of the current order in accordance with article 30 (1) 1
Decision and reasons on review of the current order: The panel have imposed a conditions of practice order for a period of 2 years in accordance with Article 30 (1) of the Nursing and Midwifery Order 2001 (as amended) (the Order). This is the first review of a suspension order, originally imposed by a panel of the Conduct and Competence Committee on 13 December 2016 for 12 months. The current order is due to expire on 12 January 2018. The panel is reviewing the order pursuant to Article 30(1) of the Order. The charge found proved which resulted in the imposition of the substantive order was as follows: That you, a registered nurse: 1. On 19 May 2016 at Glasgow Sheriff Court were convicted of assault to severe injury and permanent impairment. And, in light of the above, your fitness to practise is impaired by reason of your conviction. The original panel determined the following with regard to impairment: The panel reminded itself that the purpose of fitness to practise proceedings is not to punish the practitioner for past misdoings, but to protect the public from the acts and omissions of practitioners who are not fit to practise. The panel noted that there has been no evidence submitted that there were concerns in relation to Mr Flynn s clinical practice. The panel concluded that Mr Flynn s behaviour at the time placed patients at risk of harm, brought the profession into disrepute due to his conduct and breached a fundamental tenet of the profession. His behaviour was a serious breach of trust 2
both as a colleague and a registered nurse. The panel noted on the indictment that Mr Flynn repeatedly punched [Person A] on the head and body and this he did having previously evinced malice and ill will towards [Person A] to his severe injury and permanent impairment. The panel has been presented with no evidence that Mr Flynn has any insight into his behaviour. Moreover, there is nothing before the panel to demonstrate any evidence of remorse beyond his expression of deep regret that Person A had sustained an injury, included in his initial statement provided to his employer. It considered that he has not shown that he recognises the impact of his behaviour and subsequent conviction on the public confidence in the profession. The panel has been presented with no evidence regarding any steps taken by Mr Flynn to remediate his actions. Therefore the panel was concerned that there is a risk of repetition. Due to the exceptionally serious nature of Mr Flynn s departure from the standards to be expected of a registered nurse, the panel concluded that the need to uphold proper professional standards and public confidence in the profession, and in the NMC as a regulator, would be seriously undermined if a finding of impairment was not made in the circumstances of this case. Consequently, the panel determined that Mr Flynn s fitness to practise is currently impaired by reason of his conviction. The original panel determined the following with regard to sanction: The panel next considered a suspension order. It noted that this was an isolated incident in an otherwise unblemished career and that he victim himself acknowledged that this was out of character. However, the panel considered Mr Flynn s violent behaviour and subsequent conviction was extremely serious. The panel was concerned by Mr Flynn s lack of insight into this actions and absence of any evidence of steps taken to remedy his behaviour. 3
When balancing the public interest and Mr Flynn s interest the panel concluded that a 12 month suspension order would adequately protect the public and uphold public confidence in the profession and the NMC as its regulator. The panel decided that the maximum period of suspension would mark the seriousness with which Mr Flynn s unlawful behaviour is seen by the public. It would also send out a clear public message of the importance of fundamental standards of professional conduct. It will also give Mr Flynn a further opportunity to reflect on his actions and demonstrate insight and remediation. The panel gave very serious consideration to a striking-off order. However, although Mr Flynn s assault was exceptionally serious, it was a one-off isolated incident and was entirely out of character. Mr Flynn has not faced any previous NMC referrals nor is there any evidence his practice has ever been called into question. Person A accepted that Mr Flynn s assault was out of character. In the circumstances the panel therefore narrowly concluded that such an order at this stage would be disproportionate. Decision on current fitness to practise The panel has considered carefully whether your fitness to practise remains impaired. Whilst there is no statutory definition of fitness to practise, the NMC has defined fitness to practise as a registrant s suitability to remain on the register without restriction. In considering this case, the panel has carried out a comprehensive review of the order in light of the current circumstances. It has noted the decision of the last panel. However, it has exercised its own judgment as to current impairment. The panel has had regard to all of the documentation before it including your reflective piece, a letter from East Dunbartonshire Criminal Justice Social Work dated 27 November 2017 and a reference on your behalf. It has taken account of the submissions made by Ms Forsyth on behalf of the NMC and those made by you. The panel also heard from you under oath. 4
Ms Forsyth on behalf of the Nursing and Midwifery Council (NMC) submitted that it was clear that you accept what you did was wrong. She referred the panel to the documents you provided which included your positive references from your social worker and current manager at Erskine Hospital where you volunteer. Ms Forsyth submitted that it was for the panel to determine whether you have demonstrated sufficient insight into your actions. Ms Forsyth informed the panel that the matter of impairment is for the panel s own professional judgement. You told the panel that prior to the incidents giving rise to the charges occurred you had previously worked for 30 years without any concerns relating to your nursing practice or with regards to your working relationship with your colleagues. You said that you love nursing. You told the panel that when the incident occurred in 2014, that your motives were entirely patient led however things got out of hand and you deeply regret the incident that took place. You said you would never do something like that again and you realise that your actions would undermine public confidence in the nursing profession. You informed the panel that you are now hoping to move on from this incident and return back to nursing. While you have been suspended you have completed a community payback order within Erskine Hospital working with war veterans. You have continued to volunteer following completion of your payback order and also assisted a neighbour who requires care with all aspects of his daily life. You have also been working as a welder. The panel heard and accepted the advice of the legal assessor. The panel considered whether your fitness to practise remains impaired. In reaching its decision, the panel was mindful of the need to protect the public, maintain public confidence in the profession and to declare and uphold proper standards of conduct and performance. 5
Regarding your insight, the panel is aware that the substantive panel had no information regarding your insight or remediation. The panel had regard to your written reflection dated 27 November 2017. Although it demonstrates developing insight, the panel was not satisfied that the depth of insight demonstrated in your evidence fully addresses the concerns raised at the substantive hearing. The panel accepts that you have shown a degree of developing insight, and have expressed remorse and apologised to this panel for your misconduct. The panel heard from you under oath, however, it could not be satisfied that the depth of insight demonstrated in your evidence was sufficient to satisfy it that there was no longer of risk of repetition of your misconduct. The panel acknowledged that the misconduct found related to a single incident on a single shift in a long career where no other concerns have been raised. The panel had regard to the references you have provided that attest to your good character. The panel accept that there are no deep seated attitudinal issues, but it was not satisfied that you had demonstrated a full understanding of the impact your misconduct, the harm it caused to Person A and the potential risk of future harm, and the impact such misconduct has on the reputation of the profession. In its consideration of whether you have remedied your practice the panel took into account the positive references, the length of your nursing career, and your willingness to improve your skills and knowledge. The substantive panel determined that you were liable to repeat matters of the kind found proved. This panel has heard additional evidence of your growing insight and remediation, but was not satisfied that there was no longer a risk of repetition of your misconduct. The panel had borne in mind that its primary function was to protect patients and the wider public interest which includes maintaining confidence in the nursing profession and upholding proper standards of conduct and performance. The panel determined that there remains a risk to patients if you were to practise unrestricted. The panel 6
therefore decided that a finding of continuing impairment is necessary on the grounds of public protection. The panel was however satisfied that the public interest matters identified by the substantive panel have been met by the imposition of the suspension order. However, having determined that there is a risk to patients should you practise without restriction, it concluded that public confidence in the profession would be undermined if a finding of impairment were not made. For these reasons, the panel finds that your fitness to practise remains impaired. Determination on sanction Having found your fitness to practise currently impaired, the panel then considered what, if any, sanction it should impose. The panel has had in mind the NMC s Sanctions Guidance (SG) and that the purpose of a sanction is not to be punitive, though any sanction imposed may have a punitive effect. The panel first considered whether to take no action but concluded that this would be inappropriate in view of the risk of repetition identified and the seriousness of the case. The panel decided that it would be neither proportionate nor in the public interest to take no further action, and that misconduct of this nature requires a sanction. The panel then considered whether to impose a caution order but concluded that this would be inappropriate in view of the risk of repetition and would not be sufficient to protect patients. The panel decided that it would be neither proportionate nor in the public interest to impose a caution order having identified a risk of harm. The panel then considered a conditions of practice order. Although your misconduct was serious there has, however, been evidence to show that you have some degree of insight and that you wish to return to nursing practice. You have indicated that you would welcome the opportunity to return to safe and effective practice. The panel concluded that it would be possible to formulate practicable and workable conditions 7
which would serve to protect the public. The panel acknowledged that you had not practised as a registered nurse for the period of the suspension order and that there were identifiable areas of your practice that could be addressed. The panel decided that the public would be suitably protected as would the reputation of the profession by the implementation of the following conditions of practice: 1. You must confine your nursing practice to day shifts until approved otherwise by your employer; 2. At any time that you are employed or otherwise providing nursing services, you must place yourself and remain under the supervision of a workplace line manager, mentor or supervisor nominated by your employer, such supervision to consist of monthly meetings with your supervisor or nominated deputy to monitor and discuss progress of your personal development plan highlighted below; 3. You must work with your line manager, mentor or supervisor (or their nominated deputy) to create a personal development plan designed to address the concerns about the following areas of your practice: identification and escalation of incidents; safeguarding; familiarisation of organisational policy in regards to incident reporting, whistle blowing and conflict resolution; 4. You must meet with your line manager, mentor or supervisor (or their nominated deputy) at least every month to discuss the standard of your performance and your progress towards achieving the aims set out in your personal development plan; 5. You must send a report from your line manager, mentor or supervisor (or their nominated deputy) setting out the standard of your performance and your 8
progress towards achieving the aims set out in your personal development plan to the NMC before any NMC review hearing or meeting; 6. You must notify the NMC within 14 days of any nursing or midwifery appointment (whether paid or unpaid) you accept within the UK or elsewhere, and provide the NMC with contact details of your employer; 7. You must inform the NMC of any professional investigation started against you and/or any professional disciplinary proceedings taken against you within 14 days of you receiving notice of them; 8. You must within 14 days of accepting any post or employment requiring registration with the NMC, or any course of study connected with nursing or midwifery, provide the NMC with the name/contact details of the individual or organisation offering the post, employment or course of study; 9. You must immediately inform the following parties that you are subject to a conditions of practice order under the NMC s fitness to practise procedures, and disclose the conditions listed at (1) to (8) above, to them: a. Any organisation or person employing, contracting with, or using you to undertake nursing work; b. Any agency you are registered with or apply to be registered with (at the time of application); c. Any prospective employer (at the time of application) where you are applying for any nursing or midwifery appointment; and d. Any educational establishment at which you are undertaking a course of study connected with nursing or midwifery, or any such establishment to which you apply to take such a course (at the time of application). The panel determined that the period of the order should be 2 years. This will provide you with an opportunity to demonstrate full insight into your misconduct and to put these 9
conditions into effect. This order should come into effect immediately in accordance with Article 30 (1). This order will be reviewed before its expiry. A reviewing panel will be assisted by: Up to date references or testimonials from your current line manager, supervisor or employer in either a paid or voluntary capacity, whether in a healthcare environment or otherwise which also demonstrates their awareness of the NMC proceedings. Evidence of professional development; including documentary evidence of completion of any course or training. Evidence, whether by testimonials or otherwise that your learning has been embedded in your clinical practice. Submission of a written reflective piece which covers the impact of your misconduct on patient harm, your colleagues and the reputation of the profession Your attendance at the review hearing. This decision will be confirmed to you in writing. That concludes this determination. 10