Nursing and Midwifery Council:

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1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 23 February 2018 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: NMC PIN: Miss Ann Wright 08C0024E Part(s) of the register: Registered Nurse Sub Part 1 Adult July 2008 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Miss Wright: Nursing and Midwifery Council: England Conviction Eileen Skinner (Chair, Lay member) Anne Phillimore (Lay member) Mary Hattie (Registrant member) Andrew Reid Tafadzwa Taz Chisango Not present and not represented in absence Represented by Mr Simon Newman, Case Presenter Consensual Panel Determination: Facts proved by admission: Fitness to practise: Sanction: Interim Order: Accepted All Impaired Striking off order Interim suspension order 1

2 Detail of Charges That you, a registered nurse 1. On 16 July 2015 at Lewes Crown Court were convicted of being a holder of a public office wilfully neglected to perform her duty/wilfully misconducted herself contrary to Common Law. 2. On 16 July 2015 at Lewes Crown Court were convicted of Conspiracy to convey list B articles into a prison contrary to Section of the Offenders Management Act 2007 AND in light of the above, your fitness to practise is impaired by reason of your conviction. Found proved by way of admission Decision on Service of Notice of Hearing The panel was informed at the start of this hearing that Miss Wright was not in attendance and that written notice of this hearing had been sent to Miss Wright s registered address by recorded delivery and by first class post on 19 January Further, the panel noted that notice of this hearing was also sent to Miss Wright s representative at the Royal College of Nursing (RCN) on 19 January The panel took into account that the notice letter provided details of the allegation, the time, dates and venue of the hearing and, amongst other things, information about Miss Wright s right to attend, be represented and call evidence, as well as the panel s power to proceed in her absence. 2

3 Mr Newman submitted that the NMC had complied with the requirements of Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the Rules ). The panel accepted the advice of the legal assessor. In the light of all of the information available, the panel was satisfied that Miss Wright has been served with notice of this hearing in accordance with the requirements of Rules 11 and 34. It noted that the rules do not require delivery and that it is the responsibility of any registrant to maintain an effective and up-to-date registered address. Decision on proceeding in the absence of the Registrant The panel next considered whether it should proceed in the absence of Miss Wright. The panel had regard to Rule 21 (2) which states: (2) Where the registrant fails to attend and is not represented at the hearing, the Committee (a) shall require the presenter to adduce evidence that all reasonable efforts have been made, in accordance with these Rules, to serve the notice of hearing on the registrant; (b) may, where the Committee is satisfied that the notice of hearing has been duly served, direct that the allegation should be heard and determined notwithstanding the absence of the registrant; or (c) may adjourn the hearing and issue directions. Mr Newman invited the panel to continue in the absence of Miss Wright on the basis that she had voluntarily absented herself. Mr Newman drew the panel s attention to an submitted by Miss Wright s representative at the RCN dated 19 February

4 which states, Our member will not be in attendance but will be available by telephone should the panel have any questions, which can be directed to me by telephone or on 23 February Therefore, there was no reason to believe that an adjournment would secure her attendance on some future occasion. The panel accepted the advice of the legal assessor. The panel noted that its discretionary power to proceed in the absence of a registrant under the provisions of Rule 21 is not absolute and is one that should be exercised with extreme care and caution. The panel considered the correspondence from Miss Wright s representative in which she stated that Miss Wright and she would not be in attendance but would be available by telephone if required. The panel took into account that a provisional agreement has been signed by Miss Wright on 4 February 2018 which stated that Miss Wright is aware of the hearing. Miss Wright does not intend to attend the hearing and is content for it to proceed in her absence. In these circumstances, the panel has decided that it is fair, appropriate and proportionate to proceed in the absence of Miss Wright. The panel will draw no adverse inference from Miss Wright s absence. Consensual panel determination At the outset of this hearing, Mr Newman, on behalf of the NMC, informed the panel that prior to this hearing a provisional agreement of a consensual panel determination had been reached with regard to this case between the NMC and Miss Wright. The agreement, which was put before the panel, sets out Miss Wright s full admission to the facts alleged in the charges, and that Miss Wright s fitness to practise is currently 4

5 impaired by reason of her conviction. It is further stated in the agreement that an appropriate sanction in this case would be a striking off order. The panel has considered the provisional agreement reached by the parties. That provisional agreement reads as follows: Conduct and Competence Committee Consensual panel determination: provisional agreement Miss Wright is aware of the CPD hearing. Miss Wright does not intend to attend the hearing and is content for it to proceed in her and her representative s absence. Miss Wright will endeavour to be available by telephone should any clarification on any point be required. The Nursing and Midwifery Council and Miss Ann Wright, PIN 08C0024E ( the parties ) agree as follows: 1. Miss Wright admits the following charges: That you, a registered nurse 1. On 16 July 2015 at Lewes Crown Court were convicted of being a holder of a public office wilfully neglected to perform her duty/wilfully misconducted herself contrary to Common Law. 2. On 16 July 2015 at Lewes Crown Court were convicted of Conspiracy to convey list B articles into a prison contrary to Section of the Offenders Management Act

6 AND in light of the above, your fitness to practise is impaired by reason of your conviction. Facts 2. The facts are as follows: 3. Miss Wright entered onto the NMC Register on 26 July In 2007 she began working bank shifts at HMP Lewes. 4. On 16 July 2015 Miss Wright entered guilty pleas and was convicted of one count of misconduct in a public office and one of conspiracy to convey list B articles into a prison. The certificate of conviction is attached as Appendix 1. The allegations underlying both counts arise from the same facts. 5. While working as a bank nurse at HMP Lewes Miss Wright engaged in a nonphysical but intimate relationship with a prisoner. 6. On 10 October 2014 officers conducted a cell search on A wing of HMP Lewes, during which a black and green sock was found in a bucket next to the toilet. That sock was found to contain mobile phones. 7. Miss Wright s home was subsequently searched. Letters between Miss Wright and the prisoner, evidencing the intimate relationship, were discovered along with the box for a phone with the same IMEI number as one of those recovered in the prison. 8. Following the discovery of phones in the cell, Miss Wright had disposed of a phone with a number she had used for over 12 years and obtained a new phone and phone number. Text messages on the phones were analysed and over 1000 messages between Miss Wright s new phone and the prisoner 6

7 from October and November, were discovered including photographs sent from within the prison to Miss Wright s phone and discussion about taking another phone into the prison. 9. The dates on which the phones could be shown to have entered the prison matched dates on which Miss Wright had been working. 10. On 26 November 2014 Miss Wright was arrested. On the same day the cell was searched again and another mobile phone found, which contained Miss Wright s phone number. Miss Wright s response 11. On arrest Miss Wright denied having been involved in taking any prohibited items into prison despite having been asked to do so, a position she maintained in police interview. 12. On 29 April 2015 Miss Wright was interviewed again and admitted having a relationship with the prisoner, as well as her association with others accused of being part of the conspiracy. 13. On 28 May 2015 Miss Wright telephoned the Registrations Department informing the NMC that she had been arrested and bailed for the offences. 14. Miss Wright initially denied the allegations in interview but pleaded guilty at Lewes Crown Court And has admitted the charges at all stages before the NMC 15. In correspondence with the NMC, Miss Wright s representatives have expressed her remorse. Miss Wright has chosen not to produce a reflective piece due to the outcome agreed between the parties. 7

8 Sentence 16. Having pleaded guilty to both counts, Miss Wright was sentenced on 2 December She was sentenced as follows: Count One: 20 months imprisonment; Count Two: 10 months imprisonment to be served concurrently to the sentence for Count One. Local Investigation 17. In the days before her first court appearance, Miss Wright was permanently removed from the Sussex Partnership NHS Foundation Trust Bank register at the conclusion of an investigation conducted into the, then, charges by the Trust. Impairment 18. Miss Wright accepts that her fitness to practise is currently impaired by reason of her convictions, in accordance with the following principles laid down in CHRE v (1) NMC and (2) Grant [2001] EWHC 927 (Admin): (i) (ii) (iii) (iv) [ ] Her conduct brought the profession into disrepute; Her conduct breached a fundamental tenet of the profession; Her conduct was dishonest 19. The parties agree that the convictions are of a serious nature, breaching fundamental tenets of the nursing profession as set out in The Code (NMC, 8

9 2015) which require that a nurse keep the laws of the country in which they practise and uphold the reputation of the profession at all times. 20. The parties agree that the offences committed do not relate directly to patient care and do not place patients at a risk of undue harm. However, the parties agree that the serious nature of the convictions gives rise to a wider public interest to protect the reputation of the profession. 21. The parties have considered specifically the comments of Cox J in Grant at paragraph 101: The Committee should therefore have asked themselves not only whether the Registrant continued to present a risk to members of the public, but whether the need to uphold proper professional standards and public confidence in the Registrant and in the profession would be undermined if a finding of impairment of fitness to practise were not made in the circumstances of the case. 22. The facts of Miss Wright s convictions show that she used her position as a nurse in a prison to commit her offences. Those offences, by their nature, abused the trust placed in her by her employer and the access she was afforded by virtue of her position. 23. In terms of insight, Miss Wright s guilty plea and, more importantly, acceptance at all stages before the NMC, imply a degree of insight into the fact that her conduct is unacceptable. Her decision to self-refer demonstrates her understanding of the importance of her regulator being kept informed. However, she has not, and does not intend to, explore her insight in writing before the Panel given the position as agreed between the parties. There is therefore no evidence of insight into the impact of her actions on public confidence in the profession. 9

10 24. The parties agree that it is extremely difficult to demonstrate remediation for the type of offences committed. 25. The parties have also considered the NMC Remediation and Insight Guidance: Examples of conduct which may not be possible to remedy and where steps such as training courses of supervision at work are unlikely to address concerns include: criminal convictions that led to custodial sentences; inappropriate personal or sexual relationships with patients, service users or other vulnerable people; dishonesty, particularly if it was serious and sustained over a period of time, or directly linked to the nurse or midwife s practice [ ] 26. Miss Wright has not worked in a healthcare setting since her release from prison, nor has she engaged in any training with the aim of remediating. 27. The parties agree that in light of the very serious nature of Miss Wright s convictions, a finding of impairment is required in the wider public interest in order to declare and uphold proper standards of behaviour and conduct. The conduct underlying her convictions fell so far short of what is expected and required of a registered nurse that confidence in the profession and in the NMC as a regulator would be severely undermined if a finding of impairment were not made in this case. Sanction 10

11 28. The parties agree that the appropriate and proportionate sanction in this case is a striking-off order. In reaching this decision, the following factors have been taken into account: Aggravating factors (i) Serious criminal offences committed; (ii) Relationship with a prisoner; (iii) Nursing position used to commit offences; (iv) Breach of employer s trust; (v) Offence committed by conspiring with others; (vi) Offence committed over a period of some time; (vii) Lack of insight, remorse and remediation demonstrated, although Miss Wright has positively chosen not to provide a reflective piece in light of the agreed sanction. Mitigating factors (i) No previous convictions; (ii) No previous referrals in a long career; (iii) Self-referral when charged; (iv) Admissions from an early stage; (v) No clinical concerns. 29. The parties are mindful that the least restrictive sanction which properly addresses the public interest concern should be imposed and that any sanction imposed must be proportionate. 30. The parties agree that it would be inappropriate to take no action and to take such a course would be inconsistent with the parties agreed position on impairment. 11

12 31. The parties further agree that a caution order would be inappropriate and disproportionate given the impact on public confidence of a Registrant acting as Miss Wright did, in particular using her position as a prison nurse to facilitate her offending. 32. The parties also agree that a conditions of practice order would be inappropriate. Miss Wright s convictions, although committed in the workplace and related to her employment, do not relate to her clinical conduct and there are no identifiable areas of her practice in need of assessment or retraining as a result of her convictions. It is not possible to formulate conditions that could be imposed to assist in remediating the criminality underlying the convictions. 33. Further, the parties agree that a conditions of practice order would not sufficiently address the impact that Miss Wright s convictions have on public confidence in the profession. 34. The parties agree that the seriousness of this case is such as to require temporary removal from the register but that a period of suspension would be insufficient to protect the public interest and to declare and uphold proper standards of conduct. 35. The parties agree that Miss Wright s conviction is fundamentally incompatible with her continued registration as a nurse such that the appropriate and proportionate sanction in this case is a striking-off order. The parties agree that only a striking-off order is capable of restoring public confidence in the profession and the regulator given the circumstances of Miss Wright s convictions. In reaching this conclusion the parties have considered the NMC Sanctions Guidance in respect of a striking-off order: 12

13 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. [ ] 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). [ ] Convictions or cautions involving any of the conduct or behaviour in the above examples. The courts have supported decisions to strike off healthcare professionals where there has been lack of probity, honesty or trustworthiness, notwithstanding that in other regards there were no concerns around the professional s clinical skills or any risk of harm to the public. 1 Striking-off orders have been upheld on the basis that they have been justified for reasons of maintaining trust and confidence in the professions. 36. The parties agree that a striking-off order is proportionate when the need to maintain public trust and confidence in the profession, and the need to uphold proper professional standards is considered. Interim Order 37. Due to the basis on which impairment has been agreed by the parties, it is further agreed that an interim order is necessary to protect the public interest. 13

14 38. The parties agree that an 18-month suspension order is appropriate and necessary in this case, to uphold the public interest. An 18-month order covers the 28 day period before the substantive order takes effect and, in the event of an appeal, the period of those proceedings. The parties understand that this provisional agreement cannot bind a panel, and that the final decision on findings, impairment and sanction is a matter for the panel. The parties understand that, in the event that a panel does not agree with this provisional agreement, the admissions to the charges set out at section 1 above, and the agreed statement of facts set out at section 2 above, may be placed before a differently constituted panel that is determining the allegation, provided that it would be relevant and fair to do so. Here ends the provisional agreement between the NMC and Miss Wright. The provisional agreement was signed by Miss Wright on 4 February 2018 and by the NMC on 20 February Decision and reasons on the consensual panel determination: The panel decided to accept the agreement. The panel heard and accepted the legal assessor s advice. He referred the panel to the NMC Sanctions Guidance (SG) and to the NMC s guidance on Consensual Panel Determinations. He reminded the panel that they could accept, amend or outright reject the provisional agreement reached between the NMC and Miss Wright. Further, the panel should consider whether the provisional agreement would be in the public interest. This means that the outcome must ensure an appropriate level of public protection, maintain public confidence in the profession and the regulatory body, and declare and uphold proper standards of conduct and behaviour. 14

15 The panel noted that Miss Wright admitted the facts of the charges. Accordingly, the panel was satisfied that the charges are found proved by way of Miss Wright s admissions as set out in the signed provisional agreement before the panel. The panel then went on to consider whether Miss Wright s fitness to practise is currently impaired. Whilst acknowledging the agreement between the NMC and Miss Wright, the panel has exercised its own independent judgement in reaching its decision on impairment. The panel considered whether Miss Wright s fitness to practise is currently impaired by reason of her convictions. The panel is of the view these convictions are of a serious nature. Miss Wright used her position as a nurse in a prison to commit these offences. She abused her position of trust. The panel noted that Miss Wright has not worked since the incidents and has been unable to demonstrate any remediation although it would be difficult for this type of offence. Although, Miss Wright made admissions to the charges, she has not provided the panel with any evidence of insight. The panel determined that Miss Wright s fitness to practise is currently impaired. In this respect the panel endorsed paragraphs 18 to 27 of the provisional agreement. Having found Miss Wright s fitness to practise currently impaired the panel went on to consider what sanction, if any, it should impose in this case. The panel has borne in mind that any sanction imposed must be appropriate and proportionate. The purpose of any sanction is not intended to be punitive even though it may have a punitive effect. The panel has considered this case very carefully. It endorses paragraphs of the provisional agreement. It directs the registrar to strike Miss Ann Wright off the register. The effect of this order is that the NMC register will show that Miss Wright has been struck-off the register. In reaching this decision, the panel has had regard to the information in the consensual panel determination and had regard to the submissions from Mr Newman. The panel 15

16 noted the guidance provided in the case of GDC and Fleischmann [2005] EWHC 87 (admin) that where a registrant has been convicted of a serious criminal offence they should not be permitted to resume their practice until they have satisfactorily completed their sentence. The panel noted that although Miss Wright was released from prison on licence after serving 6 months of her 20 month sentence, that sentence has yet to be completed. 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 but it considered itself bound by the guidance provided in the case of Fleischmann as set out above 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 Miss Wright 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. The panel next considered whether placing conditions of practice on Miss Wright 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. 16

17 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. Miss Wright s conviction related to actions that took place in her employment, however they did not relate to her clinical conduct. There are no identifiable areas of her practice in need of assessment or retraining as a result of her convictions and could not be remedied by way of retraining. Furthermore the panel concluded that the placing of conditions on Miss Wright s registration would not adequately address the seriousness of this case and would not address the public interest. The panel then went on to consider whether a suspension order would be an appropriate sanction. The panel had regard to the SG guidance on a suspension order. 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 evidenced by Miss Wright s actions is fundamentally incompatible with her remaining on the register. The panel have had no evidence of any insight from Miss Wright. The panel determined that there remains a high risk of repetition of the actions found proved. Balancing all of these factors, the panel has determined that a suspension order would not be an appropriate or proportionate sanction. Finally, in considering a striking-off order, the panel took note of the following paragraphs of the SG: A serious departure from the relevant professional standards as set out in key standards, guidance and advice. [ ] Abuse of position, abuse of trust, or violation of the rights of patients, particularly in relation to vulnerable patients. [ ] 17

18 Dishonesty, especially where persistent or covered up (consider the guidance on the seriousness of dishonesty). [ ] Convictions or cautions involving any of the conduct or behaviour in the above examples. Miss Wright s convictions were extremely serious and significant departures from the standards expected of a registered nurse, and are fundamentally incompatible with her remaining on the register. The panel determined that to allow Miss Wright to continue practising would undermine public confidence in the profession and in the NMC as a regulatory body. Balancing all of these factors and taking into account all the evidence before it, the panel determined that the appropriate and proportionate sanction is a striking-off order. 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 was satisfied that an interim suspension order is necessary and is otherwise in the public interest. The panel had regard to paragraph 37 and 38 of the provisional agreement, and had taken into consideration the seriousness of the matters in this case, in reaching the decision to impose an interim order. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined. 18

19 If no appeal is made, then the interim order will be replaced by the striking off order 28 days after Miss Wright is sent the decision of this hearing in writing. That concludes this determination. 19