Nursing and Midwifery Council:

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1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 20 October 2017 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of Registrant: NMC PIN: Saul Dangirwa 07A0122O Part(s) of the register: Registered Nurse sub part 1 Adult 17 January 2007 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Nursing and Midwifery Council: Registrant: Outcome: Facts proved: Fitness to practise: Sanction: Interim order: England Conviction / Consensual Panel Determination (CPD) Richard Davies (Chair - Lay member) Paul Webb (Registrant member) Diane Meikle (Lay member) Michael Epstein Susan Curnow Represented by Mary-Clare Kennedy, counsel, instructed by the Nursing and Midwifery Council Regulatory Legal Team Mr Dangirwa was not present nor represented in absence The panel accepted the provisional CPD agreement between the parties All Impaired Suspension order - 3 months Interim suspension order 18 months Page 1 of 15

2 Decision on service of notice of hearing: The panel was informed at the start of this hearing that Mr Dangirwa was not in attendance. Ms Kennedy, on behalf of the NMC, told the panel that written notice of this hearing had been sent to Mr Dangirwa s registered address by recorded delivery and by first class post on 11 August She told the panel that Mr Dangirwa was represented by the Royal College of Nursing (RCN) and a copy of the notice was also sent to his representative on 11 August Ms Kennedy informed the panel that the venue had been changed since the notice of hearing was sent. However, the details contained in the notice were otherwise correct. She told the panel that Mr Dangirwa and his representative had been notified of the venue change by on 19 October She told the panel that there had been no response in relation to that by either Mr Dangirwa or his representative, nor had an out of office notice notification been received. Ms Kennedy told the panel that both Mr Dangirwa and his representative had indicated previously in response to the original notice that neither would be in attendance at the hearing, and so the panel could be satisfied that they were aware of the change in venues. The panel took into account that the notice letter provided details of the allegation, the time, and date of the hearing and, amongst other things, information about Mr Dangirwa s right to attend, be represented and call evidence, as well as the panel s power to proceed in his absence. The panel noted that Mr Dangirwa and his representative had been informed of the change of venue. The panel accepted the advice of the legal assessor. He further advised that where there has been a change of venue at a late stage, liaison would ordinarily be made between venues should the registrant or his representative attend. In the light of all of the information available, the panel was satisfied that Mr Dangirwa had been served with notice of the 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 Rules). Page 2 of 15

3 Decision on proceeding in the absence of the Registrant: The panel had regard to Rule 21 (2) (b) which states: Where the registrant fails to attend and is not represented at the hearing, the Committee...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... Ms Kennedy, on behalf of the NMC, invited the panel to continue in the absence of Mr Dangirwa. She referred the panel to the cases of GMC v Adeogba [2016] EWCA civ 182 and R v Hayward, Jones and Purvis [2001] 1 QB 862 CA. The panel was informed by Ms Kennedy that prior to this hearing agreement had been reached between the parties as to a proposed CPD. She submitted that given Mr Dangirwa and his representative had indicated neither intended to attend the hearing today, a change in venue has no impact on proceeding. Ms Kennedy referred the panel to the opening paragraph of the CPD which states: Mr Dangirwa ( the registrant ) is aware of the CPD hearing. He does not intend to attend the hearing and is content for it to proceed in his and his representative s absence. The registrant will endeavour to be available by telephone should any clarification on any point be required. Ms Kennedy told the panel that it was quite usual in the case of a CPD hearing for neither the registrant nor his representative to attend. Furthermore, Mr Dangirwa had submitted a bundle of documents for the panel to consider in addition to the agreement. She reminded the panel that there were no witnesses in attendance, and submitted that Mr Dangirwa had voluntarily absented himself. The panel noted that its discretionary power to proceed in the absence of a registrant under the provisions of Rule 21 is one that should be exercised with the utmost care and caution. The panel decided to proceed in the absence of Mr Dangirwa. It considered the submissions of Ms Kennedy, and the advice of the legal assessor. It had regard to the overall interests of justice and fairness to the parties. It noted that Mr Dangirwa was Page 3 of 15

4 represented by the RCN. The panel had been informed that neither he nor his representative would attend the CPD hearing. Furthermore, he was content that the hearing proceed in his absence. No application for an adjournment had been made, but Mr Dangirwa had indicated that he could be contacted by telephone during the course of this hearing if need be. In addition the panel found there was a strong public interest in the expeditious disposal of the case. In these circumstances, the panel decided to proceed in Mr Dangirwa s absence. Decision and reasons on the provisional Consensual Panel Determination (CPD): Ms Kennedy provided the panel with copies of the provisional CPD agreement and with background information provided by Mr Dangirwa. Ms Kennedy explained the rationale for the provisional agreement reached between the parties. She drew the panel s attention to the bundle provided by Mr Dangirwa, which included A reflective piece dated 2 October 2017; Testimonials dated 19 April 2017, 21 February 2017, 15 September 2017, and 16 September 2017; [PRIVATE]; Assignment review forms provided by his employer Health Professionals ; Confirmation of attendance at a Department for Transport Drink/Drive Rehabilitation Course; Training certificates. Ms Kennedy informed the panel that that Mr Dangirwa was under an NMC caution order when his conviction occurred in She told the panel that the agreement set out Mr Dangirwa s full admission to the facts alleged in the charge; the actions which amounted to his misconduct; and his acceptance that his fitness to practise is currently impaired. Ms Kennedy referred the panel to the positive testimonials provided. She informed the panel that there were no clinical concerns regarding Mr Dangirwa s practice. The only issue related to upholding the public interest. She referred to the evidence provided by Mr Page 4 of 15

5 Dangirwa regarding the personal matters that had confronted him at the time of his convictions. Ms Kennedy drew attention to the sanction proposed in the agreement - a suspension order for a period of three months on public interest grounds alone. She invited the panel to accept the provisional CPD agreement in the light of the steps Mr Dangirwa had taken to address his alcohol consumption; his substantial insight; his remorse; his apologies to the profession, his colleagues and the NMC; together with his engagement with his regulator, and his stated intention to address the issues of concern. The provisional agreement was signed by Mr Dangirwa on 4 October 2017, and for and on behalf of the NMC on 6 October The panel has considered the proposed CPD as agreed by the NMC and Mr Dangirwa as follows: Fitness to Practise Committee Consensual panel determination: provisional agreement Mr Dangirwa ( the registrant ) is aware of the CPD hearing. He does not intend to attend the hearing and is content for it to proceed in his and his representative s absence. The registrant will endeavour to be available by telephone should any clarification on any point be required. The Nursing and Midwifery Council and Mr Saul Dangirwa, PIN 07A0122O ( the parties ) agree as follows: 1. The registrant admits the following charges: That you, a registered Nurse: On 27 February 2017 were convicted at Buckinghamshire Magistrates Court of driving a motor vehicle with excess alcohol. Page 5 of 15

6 AND in light of the above, your fitness to practice is impaired by reason of your conviction. 2. The facts are as follows: 2.1. On 11 February 2017 the registrant referred himself to the NMC. He had been arrested the previous day for a drink driving offence which had resulted in a car accident. The registrant s alcohol level was found to be 97 micrograms of alcohol in 100 millilitres of breath. The legal limit is 35 micrograms of alcohol in 100 millilitres of breath On 27 February 2017 the registrant appeared before the Wycombe Magistrates Court where he pleaded guilty to the offence of driving a motor vehicle after consuming excess alcohol, contrary to section 5(1) of the Road Traffic Act He was sentenced to a community order with a requirement to carry out unpaid work for 200 hours. He was also required to pay a victim surcharge of 85 and 85 towards the costs of the prosecution. He was disqualified from driving for a period of 50 months The registrant has previously appeared before a panel of the NMC in relation to two earlier drink driving convictions: Conviction These convictions arose whilst employed as a Band 5 Nurse at Wycombe Hospital, Buckinghamshire NHS Trust On 10 July 2011, following a dispute with his wife, the registrant went to a local pub to unwind and have a drink. He was stopped by police when driving home and when tested gave a reading of 97 micrograms of alcohol in 100 millilitres of breath On 27 July 2011, the registrant appeared before Wycombe and Beaconsfield Magistrates Court and pleaded guilty to driving with excess alcohol. In sentencing the registrant, the Court ordered him to complete 100 hours of unpaid work, pay 85 in costs and disqualified the registrant from driving for 24 months. Page 6 of 15

7 Conviction On 21 March 2013, the registrant was staying at the Crowne Plaza Hotel, Marlow. After drinking in the hotel bar that evening, the registrant was involved in a collision with another vehicle on the A404 near High Wycombe. After the collision, he approached the driver of the other car and provided his contact and licence details. Neither the registrant nor any occupants of the other car were injured in the collision and the registrant offered to pay for the damage to the other vehicle without involving insurance companies After exchanging details, the registrant left the scene and went to Butlers, a bar in High Wycombe. Police attended this address and the registrant was arrested in relation to the above matter. He gave a breath sample at 02:37 am on the 22 March 2013 and gave a breath reading of 118 micrograms per 100 millilitres When the registrant was interviewed by Police on 22 March 2013, he accepted full responsibility for the collision On 25 March 2013, the registrant provided the Police with a copy of an insurance certificate from Octagon Insurance that purported to cover the vehicle on the 21 March Following further enquiries, the Police learnt that policy had been cancelled by Octagon Insurance on 4 March 2013 for nonpayment and the registrant had been informed of the cancellation by telephone and letter prior to the 25 March As such, the registrant was arrested and charged with this additional matter. On 17 April 2013, the registrant made a self-referral to the NMC informing them of the police investigation On 2 August 2013, the registrant appeared before Buckinghamshire Magistrates Court and pleaded guilty at the first opportunity to the following matters: a) Driving a vehicle with excess alcohol on 21 March 2013, contrary to Section 5 (1) (a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act Page 7 of 15

8 b) Using a certificate of insurance with intent to deceive on 25 March 2013, contrary to Section 173 (1) (a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act c) Used a motor vehicle while uninsured on 21 March 2013, contrary to Section 143 of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act In sentencing the registrant, the Court ordered him to complete 180 hours of unpaid work and he was fined 300, disqualified from driving for 3 years and ordered to pay 85 costs These matters were dealt with by way of a Consensual Panel Determination, heard by the Conduct and Competence Committee on 26 June 2014 at which a caution order for a period of 5 years was imposed upon the registrant s practice The current charge is the registrant s third conviction for drink driving The registrant s GP has confirmed, on 23 February 2017, that there is no record of any habitual excessive alcohol consumption. [PRIVATE]. Impairment 3. The registrant admits that his fitness to practise is impaired by reason of his conviction. 4. The registrant admits that he: 4.1. Has in the past brought and/or is liable in the future to bring the professions into disrepute. 5. The registrant accepts that his conviction, which is the third since 2011, brings the nursing profession into disrepute. This is particularly serious due to the repetition of offending even after the registrant had appeared before his regulator and expressed remorse for his actions less than three years earlier. There is a clear pattern of offending and as such, there is a real risk of repetition. The registrant was on a 5 year caution at the time of the 2017 conviction which increases the damage to the reputation of the profession as the caution being in existence, ought to have had a salutary effect on him. Page 8 of 15

9 6. The offence is also aggravated by the high alcohol reading and the fact that the registrant was involved in a collision as a result of his consumption of alcohol before driving. This is certainly not behaviour that the public would expect of a registered nurse. 7. The registrant has provided a reflective piece (Appendix 1) in which he apologises for his actions and recognises that his behaviour has fallen below the expected standards. He confirms that he has sought professional help, made a self-referral to SMART [PRIVATE]. [PRIVATE] an from his most recent key worker at SMART are exhibited as Appendix There are no concerns about the registrant s clinical practice, and in fact he has provided a number of positive testimonials and references stating that his work is of a very high standard and he is well regarded by his patients and colleagues (Appendix 3). 9. The registrant voluntarily attended and successfully completed a Department of Transport approved Drink/Drive Rehabilitation Course in June 2017 (Appendix 4). 10. Evidence of further clinical courses that the registrant has attended are exhibited at Appendix The parties agree that the registrant s fitness to practise is impaired on a public interest basis only. Sanction 12. The appropriate sanction in this case is a 3 month suspension order. 13. The aggravating features of the case are: The high alcohol levels in the registrant s blood at the time of the offence; The repetition of similar offending; The registrant was subject to an NMC caution at the time of the offence; Serious damage to the reputation of the profession; Page 9 of 15

10 13.5. Risk of repetition. 14. The mitigating features of the case are: He made admissions at an early stage and referred the conviction to the NMC straight away; The registrant has demonstrated some insight and remorse for his actions; The registrant has provided positive testimonials in relation to his clinical practice. 15. The Indicative Sanctions Guidance ( ISG ) [sic] makes it clear that the purpose of the sanction is not to punish the nurse or midwife for a second time in relation to a criminal conviction. 16. It is also stated in the ISG [sic] that the sentence previously imposed in a criminal context is not necessarily a reliable or definitive guide to the seriousness of the conviction as far as professional regulation is concerned. 17. The case of CHRE v (1) GDC and (2) Fleischmann [2005] EWHC 87 (Admin) confirmed that as a general principle, where a practitioner has been convicted of a serious criminal offence or offences he should not be permitted to resume his practice until he has satisfactorily completed his sentence. However, Mr Justice Newman went on to say: Only circumstances which plainly justify a different course should permit otherwise. Such circumstances could arise in connection with a period of disqualification from driving or time allowed by the court for payment of a fine. The rationale for the principle is not that it can serve to punish the practitioner whilst serving his sentence, but that good standing in a profession must be earned if the reputation of the profession is to be maintained. The registrant is still subject to the disqualification from driving but has completed the 200 hours of unpaid work so this could be considered a case which justifies taking a different course from the general principle. Page 10 of 15

11 18. The parties agree that it would not be appropriate to take no action in response to this very serious public interest matter. Further, a caution would not be sufficient to protect the public interest, particularly in light of the registrant s apparent disregard for the previous caution order that was imposed upon his registration. 19. A conditions of practice order would not be appropriate or workable as there are no identifiable areas of the registrant s clinical practice that require assessment or retraining; the concerns relate to the registrant s private life and could not be adequately dealt with or remediated by conditions. Further, it is agreed by the parties that the public interest would not be sufficiently marked by conditions. 20. The parties agree that a suspension order for a period of 3 months is the appropriate and proportionate sanction. The conviction, in light of the history of this case, is so serious that the public interest would only be protected by a temporary removal from the register. The registrant has reflected upon his actions enlisting help in order to identify how to prevent a reoccurrence and it is agreed that the risk of repetition of the offending behaviour is now limited. A single conviction for a matter entirely separate from a nurse s practice would not normally require intervention from the NMC. This case has become more serious due to the repetitive pattern of offending and as such, a suspension order is now the least restrictive sanction that would appropriately address the public interest. 21. The parties have considered whether a striking off order is required in this case but the public interest can be protected by a lesser sanction. The conviction is not fundamentally incompatible with the registrant remaining on the register although he is aware that any further offence would leave him at significant risk of a striking off order. Expiry of order 22. The parties are in agreement that this is not a case that requires a substantive order review prior to the expiry of the order. Under Rule 24(13)(f) of the NMC (Fitness to Practise) Rules 2004 the Committee are invited to issue a direction under Article 29(8A) of the NMC Order 2001 that, with effect from the date of the expiry of the substantive order, it will not be necessary to take any further action so a review will not be required. Given that the registrant s fitness to practice is impaired on public interest Page 11 of 15

12 grounds only, a further period of suspension or amendment of the order to a more or less restrictive sanction would not be appropriate. Interim order 23. It is agreed that it is necessary in the public interest for there to be an interim suspension order of 18 months to cover the notice and appeal period. 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. Panel decision and reasons regarding the CPD provisional agreement: In reaching its decision, the panel accepted the advice of the legal assessor and was reminded that in reviewing the proposed agreement, the panel should have regard to the law and guidance in respect of impairment and sanction. The panel was aware that there having been a provisional CPD agreement between the parties, the panel s powers in the circumstances would be, in the alternative, to accept the provisional CPD agreement in the current terms; to propose amendments which would need to be consented by the parties; or to reject the provisional CPD agreement. Were the panel to reject the provisional CPD agreement, the case would be transferred to a full hearing before a new panel. The panel noted that Mr Dangirwa had admitted that his fitness to practise is currently impaired by reason of his conviction, although it was acknowledged by the parties that this issue, together with the issue of sanction, were matters ultimately for determination by the panel. The panel took account of all of the information presented in the provisional CPD agreement, the pattern of convictions and the caution imposed by a panel previously, and the evidence provided by Mr Dangirwa as to his insight, remorse and remediation. Page 12 of 15

13 Findings of fact: In the light of the agreement between Mr Dangirwa and the NMC, the panel found the fact of Mr Dangirwa s conviction proved by way of admission as set out in the provisional CPD agreement above. The panel was also aware that Mr Dangirwa had previously appeared before a panel of the NMC in relation to two earlier drink driving convictions. The panel found the charge proved. Determination on impairment: In relation to impairment, again the panel concurred with the conclusion in the provisional CPD that Mr Dangirwa s fitness to practise is currently impaired on public interest grounds alone. The panel had regard to Mr Dangirwa s written statement, the level of insight and remorse he had demonstrated, and the testimonials presented on his behalf. =The panel was satisfied that Mr Dangirwa had also taken significant steps to address relevant difficulties in his personal life. The panel concluded that Mr Dangirwa s fitness to practise is currently impaired by reason of his conviction and that such a finding is necessary to uphold proper professional standards and to maintain public confidence in the nursing profession. Determination on sanction: The panel considered what sanction, if any, would be appropriate and proportionate in Mr Dangirwa s case. It took into account the NMC Sanctions Guidance (SG). It applied the principle of proportionality and reminded itself that the purpose of sanction is not to be punitive. The panel was mindful of the seriousness of Mr Dangirwa s case which was bound to have adverse effects on the reputation of the profession and on public confidence. It also took account of mitigating factors in the case. Page 13 of 15

14 The panel concurred with the conclusions set out in the provisional CPD agreement, that no further action or a caution order would not be appropriate. Such courses of action would not be sufficient to address the public interest in maintaining public confidence in the profession and upholding proper standards of conduct and behaviour. The provisional agreement had reflected upon the appropriateness of imposing a conditions of practice order. The panel took account of the steps Mr Dangirwa had taken to address his conduct. The panel noted that there were no clinical or patient protection concerns regarding his practice, and noted the positive comments from his agency employer, and the review forms on his performance which spoke highly of his clinical capabilities. It had particular regard to the testimonials provided by the Senior Charge Nurse and the Deputy Matron from the Adult ICU Oxford University Hospitals NHS Foundation Trust, where Mr Dangirwa has worked regularly as an agency nurse. The panel concluded that there were no concerns regarding Mr Dangirwa s clinical competence and skills. Given the nature of his case, the panel was of the view that it would not be possible to formulate workable and appropriate conditions. The panel next considered a suspension order. It noted that the SG suggests that this order may be appropriate when the seriousness of the case requires a temporary removal from the register. The panel has found that Mr Dangirwa s conviction was serious and constituted a departure from the standards expected of a registered nurse, and accepted that it was necessary in the public interest to mark those concerns. The panel considered in depth the reflective piece Mr Dangirwa had provided, and found that it properly addressed his shortcomings in relation to upholding the public interest. Mr Dangirwa clearly realised that drink driving puts members of public at risk of harm. The panel noted that Mr Dangirwa had yet to complete the penalties imposed as a consequence of his conviction in terms of unpaid work in the community. It also noted that in relation to the conviction, Mr Dangirwa referred himself to the NMC. The panel took account of the extent of his remediation by voluntarily engaging in a Department of Transport Drink/Drive rehabilitation course which he paid for himself. The panel was mindful of the terms of the provisional CPD agreement which proposed a three month suspension order. The panel recognised that it should apply the principle of Page 14 of 15

15 proportionality. It concluded that, in the circumstances, a suspension order for three months would be sufficient to uphold and declare proper professional standards and to maintain public confidence in the profession. It accepted that this was the least restrictive sanction that would appropriately address the public interest. The panel considered that, whilst it could not bind decisions of a future panel, were Mr Dangirwa to repeat his drink driving behaviour there was a significant risk in the future of a striking off order. The panel therefore concluded that the appropriate sanction is a suspension order for three months. It accepted the reasoning set out in the provisional agreement that a review before the order reached its term would serve no regulatory purpose. The panel determined to agree the provisional agreement without amendment. Unless subject to an appeal, this suspension order will take effect 28 days from the date this decision is deemed to have been served upon Mr Dangirwa. Decision and reasons on interim order: The panel decided that an interim order was necessary in the circumstances in order to cover any appeal period as proposed in the CPD agreement. The panel s decisions will be confirmed in writing to Mr Dangirwa. That concludes this determination. Page 15 of 15