Nursing and Midwifery Council: Fitness to Practise Committee

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1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing Friday, 5 January 2018 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of registrant: NMC PIN: Mr Razvan Claudiu Mican 16G0808C Part(s) of the register: RN1 Registered Nurse Sub-part 1 Adult Nursing Level 1 19 July 2016 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Mr Mican: Nursing and Midwifery Council: Facts proved by admission: Facts not proved: Fitness to practise: Sanction: Interim Order: Romania Conviction Ms Joy Julien (Chair, Lay member) Ms Sophie Lomas (Lay member) Mrs Joanne Lay (Registrant member) Ms Lucia Whittle-Martin Mr Philip Austin Present but not represented Represented by Mr Derek Zeitlin, Case Presenter All charges None Currently impaired Striking-off order Interim suspension order 18 months 1

2 Details of charge: That you, a registered nurse: 1. On 3 November 2016 were convicted of two offences of criminal damage contrary to Article 3(1) of the Criminal Damage (Northern Ireland) Order On 16 March 2017 were convicted of seven offences of criminal damage contrary to Article 3(1) of the Criminal Damage (Northern Ireland) Order On 10 April 2017 were convicted of two offences of breaching your conditional discharge imposed following your conviction for offences at charge 1 above, by virtue of commission of a further offence of criminal damage contrary to Article 3(1) of the Criminal Damage (Northern Ireland) Order 1977 during the operational period of the conditional discharge 4. On 10 April 2017 were convicted of one offence of criminal damage contrary to Article 3(1) of the Criminal Damage (Northern Ireland) Order 1977 And, in light of the above, your fitness to practise is impaired by reason of your convictions 2

3 Background On 3 November 2016, you were convicted of two counts of criminal damage contrary to Article 3(1) of the Criminal Damage (Northern Ireland) Order 1977 and received a conditional discharge for two years. On 16 March 2017, you were further convicted of seven counts of criminal damage contrary to Article 3(1) of the Criminal Damage (Northern Ireland) Order You received a three month prison sentence suspended for 18 months. On 10 April 2017, you were convicted of two offences of breaching your conditional discharge imposed following your conviction for offences at charge 1 above, by virtue of commission of a further offence of criminal damage contrary to Article 3(1) of the Criminal Damage (Northern Ireland) Order 1977 during the operational period of the conditional discharge. You received a one month prison sentence suspended for two years. Further, on 10 April 2017, you were convicted of one offence of criminal damage contrary to Article 3(1) of the Criminal Damage (Northern Ireland) Order

4 Decision on the findings on facts and reasons At the outset of the hearing, you admitted the charges that were read into the record. The panel noted that the charges concern your convictions and, having been provided with a copy of the certificates 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. 4

5 Submission on impairment: Having announced its finding on all the facts, the panel then moved on to consider, whether your fitness to practise is currently impaired by reason of your convictions. 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. Mr Zeitlin submitted that your actions amounted to a breach of the law. He took the panel through the background of your convictions. Mr Zeitlin submitted that you are a repeat offender and that you have received multiple convictions for criminal damage. Mr Zeitlin submitted that you are currently serving a two year suspended sentence which is in force until 10 April He referred the panel to the case of CHRE v GDC & Fleischmann[2005] EWHC 87 (Admin) and invited the panel to find current impairment on the grounds of the wider public interest. Mr Zeitlin submitted that there is a risk of repetition of you committing further offences as the imposition of a conditional discharge did not prevent you from re-offending. Mr Zeitlin stated that the charges do not relate to your clinical nursing practise. Mr Zeitlin invited the panel to find your fitness to practise currently impaired. You accepted that your fitness to practise is currently impaired. You told the panel that you did not understand the consequences of your actions at the time. You told the panel that you did not commit any offence of criminal damage at 5

6 work, and that you did not realise that your actions would have an impact on your nursing career. You apologised to the panel for your convictions. Furthermore, you acknowledged that members of the public would expect nurses to set a good example to the public. 6

7 Decision on impairment The panel has accepted the advice of the legal assessor. The panel next went on to decide if, as a result of these convictions, your fitness to practise is currently impaired. 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. 7

8 At paragraph 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. 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 finds that your actions engaged limbs b and c of Grant, as above. The panel considered the charges to involve a course of illegal conduct over a prolonged period of time. The panel concluded that the charges in their entirety are serious. The panel acknowledged your explanations in this matter. The panel considered you to have displayed limited insight into your convictions. The panel noted that you accepted your wrongdoing, but concluded that you do not realise that your actions impact on your 8

9 nursing career. Further, your insight into the reputational harm you may have caused to the nursing profession is limited. The panel considered you to have displayed some remorse by apologising for your actions. However, the panel noted that you have repeated your behaviour and have been convicted on three separate occasions for criminal damage for a totality of ten counts. The panel further noted that you had breached a court order by committing further offences whilst subject to a conditional discharge. The panel was of the view that your convictions were serious offences, and was in no doubt that they would be viewed as such by the public. The panel noted that your current suspended sentence expires on 10 April In light of all the above, the panel is of the view that there is a risk of repetition of the events based on your repeat offending, and limited insight into the charges. The panel accepted that the charges do not relate to your clinical nursing practise. The panel was of the view that a finding of current impairment on the grounds of public protection was not necessary in the circumstances. However, 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. Having regard to all of the above, the panel was satisfied that your fitness to practise is currently impaired. 9

10 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 your name 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 heard submissions from Mr Zeitlin. You said you had no further submissions for the panel to consider. Mr Zeitlin referred the panel to the Sanctions Guidance ( SG ). Mr Zeitlin submitted that your convictions are too serious for no further action or a caution order. He further submitted that a condition of practice order is not appropriate in the circumstances. Mr Zeitlin also submitted that a suspension order is not appropriate in the circumstances as you are serving a sentence of imprisonment which has been suspended until 10 April Mr Zeitlin referred the panel to the case of CHRE v GDC & Fleischmann[2005] EWHC 87 (Admin). He reminded the panel that the maximum amount of time this panel can suspend a registrant for is a period of 12 months, and you would still be serving your two year suspended sentence at the conclusion of that period of time which would be incompatible with the decision in CHRE v GDC & Fleischmann[2005] EWHC 87 (Admin). Mr Zeitlin invited the panel to impose a striking-off order in the circumstances. 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

11 recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. The panel considered the following aggravating factors: - You have multiple convictions. - Your conduct was repetitive and took place over a prolonged period of time. - You have limited insight into your convictions. - There is no evidence of remediation. The panel considered the following mitigating factors: - You gave early admissions at the start of this hearing. - You apologised for your convictions. - You have engaged fully with the NMC process. The panel had specific regard to the case of CHRE v GDC & Fleischmann[2005] EWHC 87 (Admin), in which it was said that As a general principle (except in cases involving relatively trivial matters such as time allowed for payment of a fine, or disqualification from driving), where a nurse or a midwife has been convicted of a serious criminal offence or offences, they should not be permitted to resume their practice until they have satisfactorily completed their sentence. Only circumstances which plainly justify a different course should permit otherwise. The reasoning behind this principle is not to punish the nurse or midwife whilst they are serving their sentence, but that good standing within the nursing or midwifery professions needs to be earned if the reputation of the profession is to be maintained. In light of the above, the panel was of the view that no further action, a caution order and a conditions of practice order were all inappropriate in the circumstances. 11

12 Further, in considering the possibility of a suspension order, the panel was of the view that your convictions could not be regarded as trivial as the criminal activity was a course of conduct which was serious and persisted over a prolonged period of time, resulting in a custodial sentence. The panel noted that your two year suspended sentence ends on 10 April 2019 and that the maximum period for the imposition of a suspension order is 12 months. It followed that if the panel was to impose a suspension order, it would expire prior to the conclusion of the operational period of your suspended sentence of imprisonment. This would be contrary to the principle laid down in CHRE v GDC & Fleischmann[2005] EWHC 87 (Admin). The panel therefore determined that a suspension order would not be an appropriate sanction. 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. With this in mind, and taking into account the decision in CHRE v GDC & Fleischmann[2005] EWHC 87 (Admin), the panel concluded that the only option available to it was to impose 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. The effect of this order is that the NMC register will show that you have been struck-off the register. 12

13 Determination on Interim Order The panel has considered the submissions made by Mr Zeitlin that an interim order is necessary solely on the grounds of the wider public interest. He acknowledged that there was a high bar for imposing an interim order solely on the grounds of public interest, but he submitted that it is met in the circumstances. The panel accepted the advice of the legal assessor. The panel was satisfied that an interim suspension order is 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. 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 you are sent the decision of this hearing in writing. That concludes this determination. 13

Nursing and Midwifery Council:

Nursing and Midwifery Council: Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 26 January 2018 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of Registrant Nurse: Mr Richard Imperio NMC