Nursing and Midwifery Council Fitness to Practise Committee Substantive Meeting 20 March 2018 Nursing and Midwifery Council, Temple Court 13a Cathedral Road, Cardiff, CF11 9HA Name of registrant: NMC PIN: Keorekile Daniel Ncazana 97D1080O Part(s) of the register: RN1, Registered Nurse (sub part 1) - Adult (7 April 1997) Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Facts proved: Facts proved by admission: Facts not proved: Fitness to practise: Sanction: Interim Order: England Conviction Susan Hurds (Chair, lay member) Dorothy Keates (Registrant member) Richardo Childs (Lay member) Stuart McLeese Rob James All All None Impaired Striking off order Interim suspension order (18 months) 1
Details of charge: That you, a Registered Nurse, at the Birmingham and Solihull Magistrates Court were convicted of Theft, contrary to section 1(1) and 7 of the Theft Act 1968; Fraud, by dishonestly making a false representation, namely making contactless payments on a stolen debit card, intending to cause loss to a person or to expose that person to a risk of loss, contrary to sections 1 and 2 of the Fraud Act 2006 AND in light of the above, your fitness to practise is impaired by reason of your convictions Determination on service: The panel has considered all the information provided and has heard and accepted the advice of the legal assessor. The panel has concluded that service of notice has been effected in accordance with the Rules. The letter giving notice was posted by the Royal Mail signed for service on 13 February 2018 to the registered address of Mr Ncazana, stating that a substantive meeting would take place on or after 20 March 2018. The panel is satisfied that, in accordance with Rules 11(A) and 34 of the NMC Fitness to Practise Rules 2004, service of notice has been duly effected and sufficient notice has been given as required by the Rules. 2
Background Mr Ncazana pleaded guilty to Theft, contrary to section 1(1) and 7 of the Theft Act 1968 and Fraud, by dishonestly making a false representation, namely making contactless payments on a stolen debit card, intending to cause loss to a person or to expose that person to a risk of loss, contrary to sections 1 and 2 of the Fraud Act 2006 on 4 August 2017 at the Birmingham and Solihull Magristrates Court. The incidents for which Mr Ncazana was convicted took place while he was employed as a Registered Nurse working at the Accident and Emergency (A&E) department at the University Hospital Birmingham ( The Hospital ). Patient A was admitted to A&E on 6 November 2016 after being found unconscious at the bottom of a flight of stairs at his home. Patient A remained in a coma at the Hospital in an unconscious state. On 7 December 2016, the family of Patient A discovered that his debit card had been used on a number of occasions whilst he was in a coma and informed the Police. The Police made enquiries with regard to the usage of the card and discovered that it had been used to purchase items at a variety of places including Greggs, BP garage and Sports Direct. CCTV was recovered from the BP Garage and Sports Direct of a male paying for goods at these locations at the same time as Patient A s card was recorded as being used. It appeared to be the same male on these occasions. Following this, a social media appeal took place in order to find the male who had appeared in the CCTV. A large number of responses to the appeal confirmed the man concerned to be Mr Ncazana. At 02:16hrs on 2 March 2017, Mr Ncazana called the Police, after being told by colleagues about the social media appeal. He admitted stealing the card and handed himself into Police. Mr Ncazana was interviewed by Police on 2 March 2017 and admitted to stealing the card and using it eight times. 3
Decision on the findings on facts and reasons The charges concern Mr Ncazana s conviction and, having been provided with a copy of the certificate of conviction, the panel finds that the facts are 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 she is not the person referred to in the certificate or extract. Mr Ncazana also admitted the charges in the Case Management Form signed by him on 26 January 2018. Decision on impairment The panel next went on to decide if as a result of this conviction, Mr Ncazana s fitness to practise is currently impaired. The panel accepted the advice of the Legal Assessor on this issue. 4
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 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, 5
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 determined that Mr Ncazana s actions in stealing and using Patient A s debit card engaged all parts of the Grant judgment in that he caused unwarranted risk of financial harm to Patient A and brought the nursing profession into disrepute. Further, in his actions, Mr Ncazana breached a fundamental tenet of nursing in that he did not act with honesty and integrity. His convictions were for matters that are in themselves dishonest. The panel had regard to Mr Ncazana s written response to the charges and his claim that his actions were due to a curse whilst I was on holiday in October back in South Africa. The panel had regard to Mr Ncazana s reasoning that he has been one of the pillars of the emergency department through the difficult times and that even my line manager can testify for me However, there was no documentation that supported these claims and determined that Mr Ncazana s response to the charges lacked any kind of insight into his actions and failed to recognise the effect that they had on Patient A s family or the nursing profession as a whole. 6
The panel had regard to whether there had been remediation of Mr Ncazana s actions and was of the view that dishonesty of this kind is difficult to remediate. Further, it determined that, despite being out of prison for some time, Mr Ncazana had not prepared a reflective piece relating to his actions and was of the view that he only handed himself into the Police when it was clear that he had very little other choice. The panel had regard to The Code: Professional standards of practice and behaviour for nurses and midwives (2015) ( The Code ) in relation to Mr Ncazana s actions and determined that he breached many aspects,in particular, those parts of the Code that address honesty and integrity. The panel determined that, due to Mr Ncazana s lack of insight and remediation and his minimal level of remorse, a risk of repetition of the actions that led to his conviction remained. In conclusion, the panel determined that Mr Ncazana s fitness to practice is impaired by reason of his convictions. 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 was required. It determined that a right thinking member of the public would be appalled by the abuse of trust and lack of integrity displayed by Mr Ncazana involved theft from a vulnerable patient and subsequent fraud for his own financial gain. Furthermore, the public would have no confidence in the nursing profession or the NMC as the regulator if a finding of impaired fitness to practise were not made. 7
Having regard to all of the above, the panel was satisfied that Mr Ncazana 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 Ncazana off the register. The effect of this order is that the NMC register will show that Mr Ncazana 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 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 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 Ncazana 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. The panel decided that it would be neither proportionate nor in the public interest to impose a caution order. 8
The panel next considered whether placing conditions of practice on Mr Ncazana s registration would be a sufficient and appropriate response. The panel is mindful that any conditions imposed must be proportionate, measurable and workable. The panel took into account the SG. The panel is of the view that there are no practical or workable conditions that could be formulated, given the nature of the charges in this case. The misconduct identified in this case was not something that can be addressed through retraining. Furthermore the panel concluded that the placing of conditions on Mr Ncazana s registration would not adequately address the seriousness of this case and would not protect the public. The panel then went on to consider whether a suspension order would be an appropriate sanction. The SG indicates that a suspension order would be appropriate where (but not limited to): a single instance of misconduct but where a lesser sanction is not sufficient no evidence of harmful deep-seated personality or attitudinal problems no evidence of repetition of behaviour since the incident the Committee is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour The aggravating factors that the panel took into account, in particular, are: Patient A was a vulnerable patient in an unconscious state; Mr Ncazana s actions were for personal gain; Mr Ncazana s used the stolen debit card on eight occasions; Mr Ncazana s actions involved a breach of trust; Mr Ncazana s actions involved a misuse of power. 9
The conduct, as highlighted by the facts found proved, was a significant departure from the standards expected of a registered nurse. The panel noted that the serious breach of the fundamental tenets of the profession is fundamentally incompatible with Mr Ncazana remaining on the register. The panel had regard to the mitigating factors of the case and considered them to be the following: Mr Ncazana made admissions to the charges in a Police interview and by his pleas of guilty; Mr Ncazana handed himself into the Police. However, in this particular case, the panel determined that a suspension order would not be a sufficient, appropriate or proportionate sanction. Balancing all of these factors, the panel has determined that a suspension order would not be an appropriate or proportionate sanction. Finally, in looking at a striking-off order, the panel took note of the the Sanctions Guidance which suggests that a striking off order may be appropriate in the following circumstances: A serious departure from the relevant professional standards as set out in key standards, guidance and advice. 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 10
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. Dishonesty, especially where persistent or covered up (consider the guidance on the seriousness of dishonesty). 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 also considered the specific NMC guidance on dishonesty. Mr Ncazana s actions were significant departures from the standards expected of a registered nurse, and are fundamentally incompatible with him remaining on the register. The panel was of the view that the findings in this particular case demonstrate that your actions were serious and to allow you 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 Ncazana 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 profession a clear message about the standard of behaviour required of a registered nurse. 11
Determination on Interim Order Pursuant to Article 29 (11) of the Nursing and Midwifery Order 2001, this panel s decision will not come into effect until after the 28 day appeal period, which commences from the date that notice of the suspension order has been served. Article 31 of the Nursing and Midwifery Order 2001 outlines the criteria for the imposition of an interim order. The panel may only make an interim order if it is satisfied on one or more of three grounds; that it is necessary for the protection of the public, is otherwise in the public interest or in Mr Ncazana s own interests. The panel may make an interim order for a maximum of 18 months. The panel heard and accepted the advice of the legal assessor. It has also had regard to the NMC s guidance to panels in considering whether to make an interim order. The panel has taken into account the principle of proportionality, bearing in mind the balance it must strike between the interests of the public and those of Mr Ncazana. The panel has decided to impose an interim suspension order in this case. The panel is satisfied that such an order is necessary on the grounds of public protection 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 suspension order. To do otherwise would be incompatible with its earlier findings. In the circumstances the panel considered that an interim suspension order for a period of 18 months would be appropriate. 12
If no appeal is lodged then the interim suspension order will be replaced by the striking off order 28 days after Mr Ncazanz is sent the decision of this hearing in writing. That concludes this determination. 13