Conduct and Competence Committee Substantive Hearing 22 May 2017 Nursing and Midwifery Council, 2 Stratford Place, London, E20 1EJ Name of Registrant: NMC PIN: Rodney Lowther-Harris 06B0283E Part(s) of the register: Registered Nurse - Sub Part 1 RNMH Mental Health 14 March 2006 RNA Adult 26 February 2011 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: England Misconduct Robin Somerville (Chair/Lay Member) Mary Monnington (Registrant Member) Gi Cheesman (Lay Member) Phillip Barlow Richard Webb, Lauren Graham Representation Nursing and Midwifery Council: Registrant: Facts proved: Facts not proved: Fitness to practise: Sanction: Interim Order: Represented by Henry Vallance, Nursing and Midwifery Council Regulatory Legal Team Not present and not represented All N/A Impaired Striking-off order Interim suspension order (18 months) Page 1 of 16
Decision on service of notice of hearing: The panel was informed at the start of this hearing that Mr Lowther-Harris was not in attendance. Written notice of this hearing had been sent to his registered address, as recorded on the NMC s database, by recorded delivery and by first class post on 13 March 2017. A post book entry confirmed that the notice of hearing was sent to Mr Lowther-Harris registered address by recorded delivery on that date and was signed for under the name Harris on 14 March 2017. Further correspondence between Mr Lowther-Harris and the NMC put before the panel confirmed that Mr Lowther-Harris had received notification of the hearing. The panel accepted the advice of the legal assessor. In light of all of the information available, the panel was satisfied that Mr Lowther-Harris had been served with notice of this hearing in accordance with the requirements of Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the NMC Rules ). Decision on proceeding in the absence of the registrant: Mr Vallance, acting on behalf of the Nursing and Midwifery Council (NMC), invited the panel to proceed in the absence of Mr Lowther-Harris. He provided the panel with evidence of the NMC s recent correspondence with Mr Lowther-Harris. Mr Vallance submitted that an adjournment would serve no useful purpose as there was no evidence to suggest that Mr Lowther-Harris would be any more likely to attend on some future occasion. He further submitted that there was a public interest in proceeding expeditiously and noted that a witness had been scheduled to attend this hearing. The panel accepted the advice of the legal assessor. The panel noted that its discretionary power to proceed in the absence of the registrant under the provisions of Rule 21 of the NMC Rules should be exercised with the upmost care and caution as set out in R v Jones (2009) EWCA Crim 168. Page 2 of 16
Mr Lowther-Harris had previously completed a response to notice of hearing form, signed 17 March 2017, in which he confirmed he wanted the hearing to proceed in his absence and stated that he would not be attending the hearing as he needed to provide care to his sick dog. In an email to the NMC on 19 May 2017, Mr Lowther-Harris repeated this reason for his non-attendance despite indicating that without this responsibility he would have attended. The panel had particular regard to the factors set out in the case of Jones and considered the overall interests of justice and fairness to all parties. It bore in mind that there has been no application for an adjournment and that Mr Lowther-Harris has consented to the hearing proceeding in his absence. The panel noted that Mr Lowther- Harris has had two months to make arrangements for his dog and has given no independent evidence in support of this reason. He has given no indication of when he might be available and the panel considered that an adjournment could therefore become indefinite. It was not satisfied that an adjournment would in any event result in Mr Lowther-Harris attending. The panel took into account the public interest in the expeditious disposal of the case. It also took into account that Ms 1 has attended today to give evidence. In these circumstances, the panel concluded that it would be fair, appropriate and proportionate to proceed in the absence of Mr Lowther-Harris. Charges: That you a registered nurse: 1. Breached professional boundaries in relation to Patient A in that, you: a. Commenced an inappropriate personal relationship with Patient A and/or b. Engaged in sexual intercourse with Patient A. Page 3 of 16
And, in light of the above, your fitness to practice is impaired by reason of your misconduct. Decision on the facts and reasons: At the outset of the hearing the panel was informed that Mr Lowther-Harris admitted the charges. A response to the notice of hearing form, signed by Mr Lowther-Harris on 17 March 2017, confirmed this position. Accordingly the panel found the charges proved by admission. The panel heard that, from July 2007 until his dismissal in September 2014, Mr Lowther-Harris was employed as a Staff Nurse working in the Medical Admissions Unit at the Northern General Hospital in Sheffield. Patient A was, at the material time, a 19 year old woman who was well-known to the Hospital. The panel heard that Patient A was homeless; suffered from mental health difficulties; had difficulties with drugs and depression and a history of self-harming and suicide attempts. On 13 separate occasions between the 11 June 2013 and 9 April 2014, Patient A was admitted to the Medical Admissions Unit where Mr Lowther-Harris worked. Patient A s medical notes show that Mr Lowther-Harris was directly involved in her care on 5 October 2013 and 27 March 2014. Patient A s Progress Notes for 27 March 2014 state that she was transferred to the Medical Admissions Unit from A&E after taking an overdose. The notes state that the patient had multiple scratch marks to her left arm which the patient stated she had made with a razor blade and that a safeguarding referral had been made. The notes also state: Care taken over by nurse Rod Lowther-Harris. On at least two occasions, Mr Lowther-Harris was directly involved in Patient A s care on the Unit and, therefore, would have been aware from her care records of some of the personal and health difficulties that she was experiencing at the time. Page 4 of 16
As a result of an incident on 16 April 2014 CCTV from the hospital was examined, Mr Lowther-Harris was interviewed by the Trust and the following information came to light: On 16 April 2014, Mr Lowther-Harris could be seen on the CCTV entering the hospital and walking with Patient A in the hospital grounds. He stated that he kissed Patient A and a short while later she discharged herself from the hospital against nursing advice she left the hospital walking just behind Mr Lowther-Harris. They went back to Mr Lowther-Harris home where, as he accepted in interview, they had sexual intercourse. In his interview Mr Lowther-Harris was asked whether he recognised that Patient A was vulnerable, and he said, Yes. It was put to Mr Lowther-Harris that he had formed a friendship with a young vulnerable patient and he was asked whether he had misunderstood anything. He responded by stating: No, she told me that she wanted a relationship and it was me who didn t do anything. I took the risk for love and it s backfired. The panel heard evidence from Ms 1, Nurse Director Acute and Emergency Care at Sheffield Teaching Hospitals NHS Foundation Trust. Ms 1 interviewed Mr Lowther- Harris as part of the investigation of the incident on behalf of the Trust, but did not directly witness the events. The panel was provided with a response to the allegations from Mr Lowther-Harris in an email dated 31 October 2016 and his response to the charges form, signed on 17 March 2017. Determination on misconduct and impairment: Having announced its finding on the facts, the panel then moved on to consider whether the facts found proved amount to misconduct and, if so, whether Mr Lowther-Harris fitness to practise is currently impaired by reason of that misconduct. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. Page 5 of 16
The panel had regard to the submissions of Mr Vallance. The panel heard and accepted the advice of the legal assessor. The panel was referred to the case of Council for Healthcare Regulatory Excellence v. NMC and Paula Grant [2011] EWHC 927 (Admin). In determining whether or not Mr Lowther-Harris fitness to practise is currently impaired, the panel has borne in mind that this is a two stage process. It first considered whether the facts found proved in this case amount to misconduct and, if so, whether as a result of that misconduct, Mr Lowther-Harris fitness to practise is currently impaired. The panel bore in mind that there is no burden or standard of proof at this stage of the proceedings and that the issue of impairment is a matter for the independent judgement of the panel. In reaching its decision on misconduct, the panel bore in mind its duty to protect the public, to maintain public confidence in the profession and the regulatory process, and to declare and uphold proper standards of behaviour and conduct. The panel considered first whether the facts giving rise to the charges amounted to misconduct. The panel bore in mind all the relevant evidence in this case. It has been found that Mr Lowther-Harris formed a relationship with a patient to whom he was providing nursing care and who he knew was vulnerable due to her mental health difficulties. Mr Lowther-Harris had previously declined the advances of Patient A because he had identified that it would amount to professional misconduct. Notwithstanding this, he went on to engage in a sexual relationship with her. This represented a serious breach of professional boundaries which placed Patient A at risk of harm and had the potential to significantly damage the reputation of the nursing profession. The panel considered that such behaviour clearly represents significant professional failings for a registered nurse. The panel had regard to the Guidance produced by the Council for Healthcare Regulatory Excellence in relation to Clear sexual boundaries between healthcare professionals and patients. In the section entitled, Responsibilities of Healthcare Page 6 of 16
Professionals, the guidance outlines exactly why breaches of sexual boundaries are unacceptable. The document refers to: - The potential to cause significant and enduring harm to patients; - The damage to public trust in healthcare professionals; - The impairment that such breaches can bring to professional judgment; The panel was also of the view that Mr Lowther-Harris breached the following provisions of the NMC s 2008 Code of Conduct (the Code): The people in your care must be able to trust you with their health and wellbeing To justify that trust, you must: make the care of people your first concern, treating them as individuals and respecting their dignity act with integrity and uphold the reputation of your profession 20 You must establish and actively maintain clear sexual boundaries at all times with people in your care; 33 You must inform someone in authority if you experience problems that prevent you working within this code or other nationally agreed standards; 61 You must uphold the reputation of the profession at all times. The panel was aware that not every act falling short of what would be proper in the circumstances, and not every breach of the Code, would be sufficiently serious that it could properly be described as misconduct. However, Mr Lowther-Harris actions clearly breached fundamental tenets of nursing and his behaviour also demonstrated clear failures in his duty to uphold the reputation of his profession at all times. Page 7 of 16
In all the circumstances, the panel was satisfied that the facts found proved were sufficiently serious to constitute misconduct. In particular, the panel took into account the level of Patient A s vulnerability and that Mr Lowther-Harris knew that his actions would breach [the] nurse/patient professional relationship and went on regardless. Mr Lowther-Harris also said that I would not initially be able to inform my colleagues as it would be frowned upon which indicated he wished to conceal it. The panel then went on to consider whether Mr Lowther-Harris fitness to practise is currently impaired by reason of his misconduct. The panel reminded itself that it should consider not only the risk that a registrant poses to members of the public, but also the public interest in upholding proper professional standards and public confidence in the NMC as a regulator, and whether those aims would be undermined if a finding of impairment were not made in the circumstances. The panel reminded itself of the guidance referred to in the case of Grant: 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 to act in the future 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 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 profession; and/or d)... The panel considered that, in combination, Mr Lowther-Harris misconduct falls into the categories (a) (b), and (c) of impairment as identified above. Page 8 of 16
The panel had regard to whether Mr Lowther-Harris misconduct is easily remediable, whether it had been remedied and whether it is likely to be repeated. Mr Lowther-Harris had sexual intercourse with a vulnerable 19 year old patient who was, hours before, receiving treatment at the Hospital where he worked and who discharged herself from the Hospital, against medical advice, to leave with him. Mr Lowther-Harris was fully aware that she was a vulnerable patient and, as an experienced nurse with mental health training, he must also have been aware of the risk of harm his actions presented to her. The panel rejected Mr Lowther-Harris assertion that he was not aware at the time of her mental health problems because he was aware that self-harm was in her nature and it was well documented in her care records. He had previously cared for her after she had taken an overdose and self-inflicted injuries from a razor blade, which would have made the extent of her mental health issues self-evident. The panel recognised that, in his written responses, Mr Lowther-Harris has admitted the factual charges. He states that at the relevant time he was at a particularly low point of his life. The panel bore in mind the difficult personal circumstances he was encountering at the time and the steps he has taken to address these issues. Mr Lowther-Harris states that whilst his fitness to practise may have been impaired at the time, it is not impaired at present. Mr Lowther-Harris apologised for his actions and for not upholding the reputation of the profession. However, Mr Lowther-Harris has not identified in any detail why his conduct was unacceptable, both in terms of the impact it could have had on Patient A, and the impact that it could have had on his colleagues and the wider nursing profession. Neither did he acknowledge the imbalance inherent in a sexual relationship between a vulnerable patient and a nursing practitioner whose responsibility was to provide care for her. The panel could not be satisfied that Mr Lowther-Harris had properly reflected upon the impact his actions have had upon Patient A, the public or the profession. Mr Lowther- Page 9 of 16
Harris has not demonstrated any insight into the impact his actions had or might have had on Patient A. [PRIVATE]. The panel could not be satisfied that he understands the particular need to maintain professional boundaries as a registered nurse. [PRIVATE]. There is no evidence this was directly relevant to the incident with Patient A. In light of this and the lack of evidence relating to insight, or any steps Mr Lowther- Harris has taken to address his behaviour, the panel concluded that a risk of repetition of such or similar misconduct remains. The panel has found that Mr Lowther-Harris behaviour has undermined the trust and confidence the public has in the profession. For all these reasons, the panel determined that the need to uphold proper professional standards and public confidence in the profession would be further undermined if a finding of impairment were not made in the circumstances. Accordingly, the panel has determined that Mr Lowther-Harris current fitness to practise is impaired by reason of his misconduct on public protection and public interest grounds. 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 Lowther-Harris off the register. The effect of this order is that the NMC register will show that Mr Lowther-Harris 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 Indicative Sanctions Guidance ( ISG ) published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. Page 10 of 16
On behalf of the NMC, Mr Vallance reminded the panel that the purpose of any sanction was the protection of the public, rather than punishment of the registrant, and that they should consider the proportionality of any sanction imposed. He asked the panel to have particular regard to paragraphs 39 to 45 of the ISG, relating to sexual misconduct. Mr Vallance submitted that both public protection and the public interest were engaged in this case The panel determined that the aggravating and mitigating factors in this case were as follows: Aggravating The vulnerability of Patient A; Mr Lowther-Harris knowledge of Patient A s vulnerability; That Mr Lowther-Harris allowed Patient A to leave hospital whilst still receiving treatment; The potential damage Mr Lowther-Harris conduct could cause to Patient A; The potential damage Mr Lowther-Harris conduct could cause to the reputation of the nursing profession; That this conduct was a particularly significant departure from the standards expected of a registered nurse. Mitigating Mr Lowther-Harris has engaged with the NMC s investigation; He has admitted the factual charges; and He has not been subject to any previous NMC proceedings. The panel also took into account Mr Lowther-Harris written responses to the allegations, which include reference to his personal and financial circumstances. 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. Page 11 of 16
Next, in considering whether a caution order would be appropriate in the circumstances, the panel took into account the ISG, 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 Lowther-Harris misconduct was 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. The panel next considered whether placing conditions of practice on Mr Lowther-Harris 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 ISG, in particular whether: 64.8 It is possible to formulate conditions and to make provision as to how conditions will be monitored 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 placing conditions on Mr Lowther-Harris 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. ISG paragraph 68 indicates that a suspension order may be appropriate where some of the following factors are apparent: 68 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. This is more likely to Page 12 of 16
be the case when some or all of the following factors are apparent (this list is not exhaustive): 68.1 A single instance of misconduct but where a lesser sanction is not sufficient. 68.2 No evidence of harmful deep-seated personality or attitudinal problems. 68.3 No evidence of repetition of behaviour since the incident. 68.4 The panel is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour. 68.5 In cases where the only issue relates to the nurse or midwife s health, there is a risk to patient safety if they were allowed to continue to practise even with conditions. 68.6 In cases where the only issue relates to the nurse or midwife s lack of competence, there is a risk to patient safety if they were allowed to continue to practise even with conditions. The panel noted that this case involves a single instance of misconduct and that there is no evidence of repetition. However, it was of the view that Mr Lowther-Harris has not demonstrated any insight into the effect of his conduct on Patient A, and only limited insight into its effect on the profession. Also, it has found that there still remains a risk of him repeating the behaviour. The panel also had regard to paragraphs 66 and 67 of the ISG. Considering the seriousness of the misconduct in this case, the panel was of the view that a period of suspension was not sufficient to protect the public or to satisfy the public interest. The panel has taken into account the mitigation put forth by Mr Lowther-Harris in his written statement. However, in this particular case, it determined that a suspension order would not be a sufficient, appropriate or proportionate sanction. Page 13 of 16
Finally, in looking at a striking-off order, the panel took note of the following paragraphs of the ISG and considered these to be engaged in this case: 72 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 (this list is not exhaustive): 72.1 Serious departure from the relevant professional standards as set out in key standards, guidance and advice including (but not limited to): 72.1.1 The code: Standards of conduct, performance and ethics for nurses and midwives 72.2 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, either deliberately, recklessly, negligently or through incompetence, particularly where there is a continuing risk to patients. Harm may include physical, emotional and financial harm. The panel will need to consider the seriousness of the harm in coming to its decision 72.3 Abuse of position, abuse of trust, or violation of the rights of patients, particularly in relation to vulnerable patients 72.4 Any serious misconduct of a sexual nature 72.7 Persistent lack of insight into seriousness of actions or consequences Considering all the evidence in this case, the panel were of the view that Mr Lowther- Harris behaviour could foreseeably result in harm to Patient A and that his actions were deliberate. His sexual misconduct was serious and amounted to an abuse of trust and the violation of the rights of a vulnerable patient. Mr Lowther-Harris has persistently failed to demonstrate any insight into the seriousness and consequences of his actions. Page 14 of 16
Mr Lowther-Harris actions were significant departures from the standards expected of a registered nurse and are fundamentally incompatible with his remaining on the register. The panel was of the view that the findings in this particular case demonstrate a serious breach of the fundamental tenets of the profession, that Mr Lowther-Harris actions were serious and 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 risk of harm to a vulnerable patient and the effect of Mr Lowther-Harris 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. Determination on Interim Order The panel considered the submissions made by Mr Vallance that 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 heard and 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. Page 15 of 16
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 Lowther-Harris is sent the decision of this hearing in writing. That concludes this determination. Page 16 of 16