Conduct and Competence Committee Substantive Hearing 31 October 2016 Nursing and Midwifery Council (NMC), Regus, Cromac Square, Belfast BT2 8LA

Transcription

1 Conduct and Competence Committee Substantive Hearing 31 October 2016 Nursing and Midwifery Council (NMC), Regus, Cromac Square, Belfast BT2 8LA Name of Registrant Nurse: NMC PIN: Aaron Ravel 91A1968E Part(s) of the register: RN 1: Registered nurse - sub part 1 Adult nursing 10 August 1994 RNC: Registered nurse sub part 1 Children - 27 October 2005 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Representation: Nursing and Midwifery Council: Facts proved: Facts not proved: Fitness to practise: Sanction: Interim Order: Northern Ireland Conviction Richard Davies (Chair Lay member) Mary Mccartney (Registrant member) Margaret Rogan (Registrant member) Graeme Dalgleish Susan Curnow Mr Ravel was not present and not represented Represented by Shelley Brownlee, counsel, instructed by NMC Regulatory Legal Team. All None Impaired Striking off order Suspension order 18 months Page 1 of 17

2 Details of charge: Charge: That you, a Registered Nurse on 14 March 2016, at the Crown Court at Belfast were convicted of: 1. On 19 day of April 2014, in the County Court Division of Belfast, made an indecent photograph of a child, namely 2011 elite.wmv. contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order On 9 day of November 2013, in the County Court Division of Belfast, made an indecent photograph of a child, namely Kinderkutje Niece Loliman Undress q7.avi. contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order On 23 day of November 2013, in the County Court Division of Belfast, made an indecent photograph of a child, namely bd_company_05.avi. contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order On 23 day of October 2013, in the County Court Division of Belfast, made an indecent photograph of a child, namely fresh fruit.wmv. contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order On 23 day of October 2013, in the County Court Division of Belfast, made an indecent photograph of a child, namely jpg. contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order On 23 day of October 2013, in the County Court Division of Belfast, made an indecent photograph of a child, namely (233).JPG. contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order On 21 day of April 2014, in the County Court Division of Belfast, made an indecent photograph of a child, namely holly-76.jpg. contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order On 21 day of April 2014, in the County Court Division of Belfast, made an indecent photograph of a child, namely holly-28.jpg. contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order On 23 November 2013, in the County Court Division of Belfast, made an indecent photograph of a child, namely -12YO Masturbation (Part 1).wmv. Page 2 of 17

3 contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order On 23 day of October 2013, in the County Court Division of Belfast, made an indecent photograph of a child, namely Pedo 9Yo Tori 01 Lsm Kdquality Childlover Pthc Kidzilla 56.jpg. contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order On 25 day of October 2012,, in the County Court Division of Belfast, made an indecent photograph of a child, namely! 7yo Laurie takes a cumshot.avi. contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order On 23 day of October 2013, in the County Court Division of Belfast, made an indecent photograph of a child, namely 100_0138.JPG. contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order On 23 day of October 2013, in the County Court Division of Belfast, made an indecent photograph of a child, namely jpg. contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order On 23 rd day of October 2013, in the County Court Division of Belfast, made an indecent photograph of a child, namely jpg. contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order On 23 day of October 2013, in the County Court Division of Belfast, made an indecent photograph of a child, namely! yo sux dad.mpg. contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order On 23 day of October 2013, in the County Court Division of Belfast, made an indecent photograph of a child, namely!! NEW yo blondie sucks man off (Sound).wmv. contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order On 23 day of October 2013, in the County Court Division of Belfast, made an indecent photograph of a child, namely!_new(g)2010_aldf00-5yo_willingprivate_ass_play.avi. contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order On 21 day of April 2014, in the County Court Division of Belfast, made an indecent photograph of a child, namely 2710.jpg. contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order 1978 Page 3 of 17

4 19. On 21 day of April 2014, in the County Court Division of Belfast, made an indecent photograph of a child, namely jpg. contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order On 21 day of April 2014, in the County Court Division of Belfast, made an indecent photograph of a child, namely wendy8mnd (3).jpg. contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order On 23 October 2013, in the County Court Division of Belfast, made an indecent photograph of a child, namely #(Pthc) 9yo Jenny Blows Dad & Dog.mpg. contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order On 23 day of October 2013, in the County Court Division of Belfast, made an indecent photograph of a child, namely _HR_ jpg. contrary to Article 3(1)(a) of the Protection of Children (Northern Ireland) Order 1978 AND, in light of the above, your fitness to practise is impaired by reason of your conviction. Page 4 of 17

5 Decision on Service of Notice of Hearing: The panel was informed at the start of this hearing that Mr Ravel was not in attendance and that written notice of this hearing had been sent to his registered address by recorded delivery and by first class post on 27 September Notice had also been sent to his last known address. Ms Brownlee informed the panel that Mr Ravel was convicted and sent to prison in May 2016, and a copy of the notice of hearing was also sent to his prison address. He left prison in August 2016, and the NMC was informed that on 24 October 2016, notice of the hearing had been passed to Mr Ravel by his probation officer. Ms Brownlee submitted the NMC had fully complied with the requirements of Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the Rules ) in that notice of the hearing had been sent to Mr Ravel s last known addresses, in addition to the address on the NMC register. She reminded the panel that it was the responsibility of the registrant to update their regulator of any change of address. 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 Mr Ravel s right to attend, be represented and call evidence, as well as the panel s power to proceed in his absence. The panel accepted the advice of the legal assessor. In the light of all of the information available, the panel was satisfied that Mr Ravel had been served with notice of this hearing in accordance with the requirements of Rules 11 and 34. Page 5 of 17

6 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 Brownlee informed the panel that there has been no evidence provided by Mr Ravel that he had engaged or that he wished to engage with the proceedings. She referred the panel to the case of General Medical Council v Adeogba [2016] EWCA Civ 162. Mr Ravel had not been in contact with the NMC since the start of the Conduct and Competence Committee process. He had not provided any explanation for his nonattendance, nor had he applied for an adjournment. Ms Brownlee invited the panel to continue in the absence of Mr Ravel on the basis that he had chosen not attend and against the background of the serious allegations cited against him. 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 one that should be exercised with the utmost care and caution as referred to in the case of R. v Jones and Hayward (No.2) [2002] UKHL 5. The panel was also mindful of the advice in Adeogba. The panel had regard to the overall interests of justice and fairness to all parties and noted that: Mr Ravel had not engaged with the NMC and had not responded to letters sent to him about this hearing; no application for an adjournment had been made by Mr Ravel and there was no reason to suppose that adjourning would secure his attendance at some future date; there remained a strong public interest in the expeditious disposal of the case. Page 6 of 17

7 In these circumstances, the panel decided that it would be fair, appropriate and proportionate to proceed in the absence of Mr Ravel. The panel determined that it would draw no adverse inference from Mr Ravel s absence. Decision on the findings on facts and reasons Having been provided with a copy of the memorandum of conviction, dated 27 May 2016, entered in the register of the Crown Court of Northern Ireland the panel found the facts proved in accordance with Rule 31 (2) which states: 31 (2) Where a registrant has been convicted of a criminal offence (a) 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 (b) the findings of fact upon which the conviction is based shall be admissible as proof of those facts. The panel therefore announced that the charge had been found proved. Background: Mr Ravel was registered as an adult nurse in August 1994, and as a registered children s nurse in He had been employed by Belfast Health and Social Care Trust since At the time of the criminal offences, he was employed as a Band 6 Community Children s Nurse based at City Hospital in Belfast. On 27 October 2014, the Trust s Community Children s Nursing Team was advised that the Police Service of Northern Ireland ( PSNI ) had arrested and charged Mr Ravel for Page 7 of 17

8 accessing, manufacturing and distributing indecent images of children on his home computer. He was placed on precautionary suspension from his position as a full time Band 6 Nurse on 31 October The Trust contacted the NMC, and a written referral was received on 7 November Mr Ravel was interviewed by the PSNI, in the presence of his solicitor, on 27 October He responded with no comment to most of the questions put to him under caution and during the interview. He was then bailed to return pending further inquiries and on 27 April 2015 and was later rearrested in relation to possession of indecent images which contained what was defined as extreme pornography and interviewed again. During this second interview, he admitted that he had been accessing indecent images of the kind discovered on his computer for one-and-a-half to two years. The following indecent images were found on his computer: Level 1 - Images depicting erotic posing with no sexual activity: 2,987 images Level 2 - Non-penetrative sexual activity between children, or solo masturbation by a child: 506 images Level 3 - Non-penetrative sexual activity between adults and children: 1149 images Level 4 - Penetrative sexual activity involving a child or children, or both children and adults: 2547 images Level 5: Sadism or penetration of, or by, an animal: 174 images The images at all levels included picture and movie files. Mr Ravel was charged and appeared at Laganside Crown Court on 14 March He was arraigned on that date and pleaded guilty to 22 offences of making indecent images of children. Page 8 of 17

9 These were specimen charges. Counts 1 to 8 related to level 1 images; counts 9 and 10 related to level 2 images; counts 11 to 14 related to level 3 images; counts 15 to 20 related to level 4 images: and counts 21 and 22 related to level 5 images. The sophisticated level of encryption that concealed the images was held to be an aggravating factor by the sentencing judge. The judge also took into account the position Mr Ravel adopted during the first interview on 27 October 2014 and the fact that the lack of cooperation had delayed the police investigation. On 19 May 2016, Mr Ravel reappeared at Court for sentencing. He was sentenced to 3 months imprisonment, with a 24 month licence period concurrent on each offence and was placed on the Sex Offenders Register for ten years. He was also made the subject of a Sexual Offences Prevention Order for five years and disqualified from working with children under the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 and placed on the Independent Safeguarding Authority Barring list. Mr Ravel was released from prison, on licence, on 19 August Submission on impairment: Having announced its finding on the facts, the panel then moved on to consider whether the nature of the conviction and the facts on which it was based was sufficiently serious to impair Mr Ravel s fitness to practise, and whether his fitness to practice is currently impaired. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. Ms Brownlee submitted that Mr Ravel had received a criminal conviction for 22 counts of making an indecent photograph of a child, and as such, his actions were more than sufficient to call into question his suitability to remain on the register. A the time he had been working as a community nurse providing care to children, and had close contact Page 9 of 17

10 with children as part of his professional role. Thousands of indecent images graded from level one to level five were found encrypted on his computer hardware. She referred the panel to the NMC s The Code: Professional standards of practice and behaviour for nurses and midwives, (2015) ( the Code ). The date of the conviction occurred after the 2015 Code had been published, even though the incident occurred prior to its publication. She invited the panel to take the view that Mr Ravel s actions breached the standards outlined in the Code and breached a fundamental tenet of the profession. She also referred the panel to the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). Ms Brownlee informed the panel that Mr Ravel had not provided any evidence that he had taken any steps towards remediation. Accordingly, there remained a high risk of repetition bearing upon the protection of the public. She submitted that, given the seriousness of the criminal offences as measured by the sentence imposed by the Court, Mr Ravel was currently impaired. He had fallen short of the standards expected of a registered nurse and he had failed in his duty to uphold the reputation of the profession. She reminded the panel of the heightened public interest in this case. She invited it to find impairment both on public protection and on public interest grounds. Decision on impairment: The panel exercised its own judgment in determining the issues before it in relation to impairment. In considering Mr Ravel s current fitness to practise the panel reminded itself of its duty to protect patients and its wider duty to protect the public and the public interest, which includes maintaining and declaring proper standards of conduct and behaviour, maintaining the reputation of the profession, and maintaining public confidence in the profession and the regulatory process. The panel accepted the advice of the legal assessor as to impairment and the guidance in the case of Grant. Page 10 of 17

11 The panel took into account that Mr Ravel s conviction arose when Mr Ravel was working with children as a Band 6 Community Nurse. The panel considered the standards of conduct and behavior expected of a registered nurse. In this regard the panel considered the judgement of Mrs Justice Cox in the case of Grant in reaching its decision: I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph 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. Mr Ravel was convicted of serious offences, and it was clear that he was impaired at the time when he committed those offences. He had made indecent images of children whilst he was working in the community as a children s nurse. He demonstrated a lack Page 11 of 17

12 of cooperation with the police in their initial investigations and had used a sophisticated means of encryption to hide his offences which further delayed the police investigation. The panel noted there was no evidence before it relating to Mr Ravel s level of insight or verifying remorse. There was nothing to indicate that he had sought to remediate his actions or to address what had given rise to them. Mr Ravel has not engaged with the NMC proceedings or his regulator. In assessing the risk of repetition of such behaviour in the future, the panel concluded that the risk was high. Indeed, in considering the circumstances of the case as a whole, the panel concluded that the italicized paragraphs a., b., and c. above were all engaged. It noted that, as to the likelihood of further offending, the consultant clinical psychologist had told the Court that he was unable to say with certainty whether or not he would reoffend. Thus, the panel could not be satisfied that Mr Ravel would not act so as to put patients at unwarranted risk of harm; bring the profession into disrepute; or breach fundamental tenets of the nursing profession relating to integrity. The panel also took into account the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession and in the NMC as its regulator. In the light of Mr Ravel s convictions for making indecent images of children ranging in seriousness from level one to level five, the panel had no doubt that 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 this case. Mr Ravel had clearly not upheld the reputation of the profession. He had demonstrated a serious lack of personal and professional integrity relating to vulnerable children. His offences could reasonably be regarded as abhorrent by members of the profession and members of the public more widely. Page 12 of 17

13 For all the reasons outlined above, the panel determined that Mr Ravel s fitness to practise is currently impaired by reason of his conviction. In all the circumstances, it found there was no basis upon which to arrive at any other conclusion. Decision and reasons on sanction: Having determined that Mr Ravel s fitness to practise is currently impaired by reason of his conviction, the panel went on to consider what sanction, if any, to impose in this case. The panel has considered this case carefully and has decided to make a strikingoff order. The effect of this order is that the NMC register will show that Mr Ravel s name has been struck from the register. Ms Brownlee, on behalf of the NMC, referred the panel to the NMC Indicative Sanctions Guidance ( ISG ). She invited the panel to consider imposing a striking off order. She submitted that no lesser sanction would be appropriate in the circumstances, given the nature of Mr Ravel s conviction, and the public interest implications implicit in the case. The offences were committed in the context of working as a senior nurse specialising in child care in the community. The panel accepted the advice of the legal assessor who also referred it to the ISG. He reminded the panel that in determining the matter of sanction, the panel should consider all options available to it starting from the least severe and working upwards. He invited the panel to apply the principle of proportionality, taking account of the aggravating and mitigating features in this case, and reminded it that the matter of sanction was for the panel s judgement. The panel exercised its independent judgement in reaching its conclusion in this case. It acknowledged its obligation to uphold the public interest. It recognised that it must apply the principle of proportionality, balancing the public interest with the registrant s own interests, and taking account of both aggravating and mitigating factors. It accepted that Page 13 of 17

14 the purpose of any sanction was not to be punitive, though it may have that effect, but to protect the public interest. The panel bore in mind its findings on Mr Ravel s conviction and current impairment of his fitness to practise. It took into account the ISG. The panel first identified the aggravating and mitigating features in Mr Ravel s case. It was mindful of the Judge s sentencing remarks. With regard to mitigating features the panel noted that prior to the behaviour that led to Mr Ravel s conviction there had been no history of any previous concerns bearing on his practice. The panel also noted that Mr Ravel had admitted his guilt at the Crown Court. In respect of aggravating features, the panel noted Mr Ravel s: delayed co-operation with the police which had inhibited their investigations; his delayed admission of guilt; the absence of verified remorse; the absence of any evidence of insight; and the absence of any evidence as to remediation or potential rehabilitation. In addition the panel had regard to the serious nature of offences committed. The panel had identified a high risk of Mr Ravel repeating his offences in the future. The panel found the aggravating factors overwhelmingly outweighed the mitigating factors in this case. The panel addressed the available sanctions in ascending order of severity. The panel first considered whether it was appropriate to take no action. It took into account its findings of current impairment. The panel concluded that taking no action would not protect the public nor would it protect the wider public interest either in Page 14 of 17

15 maintaining proper standards of conduct or in upholding the reputation of the profession and the NMC as its regulator. The panel then considered a caution order. It noted that a caution order would not restrict Mr Ravel s nursing practice and concluded that this would be inappropriate in view of the seriousness of the case. A caution order would not be sufficient to reassure the public that similar behaviour would not be repeated in the future, nor mark the seriousness of Mr Ravel s behaviour. Therefore, the panel decided that a caution order would be completely inadequate in the circumstances as it would not protect the public nor would it satisfy the public interest. The panel went on to consider whether a conditions of practice order would be appropriate in the circumstances of this case. Mr Ravel s conviction was a serious departure from the standards expected of a registered nurse. The panel found that even if it were possible to identify conditions that were workable, practical and measurable, such a sanction would be insufficient to mark the gravity of this case. Under these circumstances, a conditions of practice order would not be adequate in order to protect the public and the wider public interest. The panel next considered the imposition of a suspension order. It noted that the ISG suggests that this order may be appropriate when the seriousness of the case requires a temporary removal from the register. Mr Ravel s conviction involved 22 separate allegations relating to children, a client group with which he had been working as a registered nurse at a senior level. The panel considered that the conviction found proved did not constitute a single incident, but rather a pattern of persistent behaviour for which Mr Ravel had received a custodial sentence, and a five year barring order. He had also been placed on the sex offenders register for ten years. There was no evidence that Mr Ravel had developed any insight into his behaviour. The panel had no evidence that he had a clear understanding of the impact of his actions on Page 15 of 17

16 patients, the public or the reputation of the profession. The panel had already found that there remained a substantial risk of Mr Ravel repeating his behaviour in the future. The panel concluded that Mr Ravel had departed so significantly from the standards required of a registered nurse, that a temporary removal would not be a sufficient sanction. He had breached the professional tenets of integrity which were of fundamental importance to practice as a registered nurse. The panel applied the principle of proportionality, balancing Mr Ravel s interests with the public interest and concluded that the only proportionate sanction in this case is a striking-off order. Given the nature and gravity of the conviction, the panel found that Mr Ravel s conduct is fundamentally incompatible with continued registration. Furthermore, the need to protect the public and to uphold public confidence in the profession could not be achieved if Mr Ravel s name were to remain on the register. The panel was satisfied that these considerations outweighed any consequential financial hardship or other impact that a striking-off order may have on Mr Ravel. The panel, determined to make a striking-off order. Mr Ravel s name will be removed from the NMC register. Mr Ravel may not apply for restoration until five years after the date that this decision takes effect. This decision will be confirmed to Mr Ravel in writing. The order will take effect 28 days from the date when notice of it is deemed to have been served upon Mr Ravel. Mr Ravel has the right to appeal this decision. Decision and reasons on interim order: The panel considered whether to impose an interim order to cover the appeal period of 28 days or, if an appeal is lodged, the time necessary to cover that appeal. Page 16 of 17

17 Ms Brownlee, on behalf of the NMC, applied for an interim suspension order of 18 months to cover the appeal period of 28 days and the resolution of any appeal. She submitted that an interim suspension order for 18 months is necessary for the protection of the public and is otherwise in the public interest. The panel accepted the advice of the legal assessor. He reminded the panel that it can make an interim order only if it was satisfied that such an order is necessary for the protection of the public, is in the public interest or in the registrant s own interests. Having regard to its findings on impairment and its reasons for directing a striking-off order, the panel was satisfied that it is necessary to impose an interim suspension order for the protection of members of the public and is otherwise in the public interest. Such an order is for 18 months to cover the period of any appeal. The panel considered that an interim conditions of practice order could not be sufficient to meet the wider public interest and address the risks identified in its substantive determination on sanction. The panel was therefore satisfied that the imposition of an interim suspension order is proportionate in the circumstances of this case and that any other order would be inconsistent with its decision to strike Mr Ravel s name off the NMC register. The panel therefore directed that Mr Ravel s registration be suspended forthwith, for a period of 18 months. Accordingly, Mr Ravel s registration will be suspended from today. The substantive decision removing Mr Ravel s name from the register will take effect 28 days from the date when notice of that decision is deemed to have been served upon him. If, in the interim, Mr Ravel exercises his right of appeal, this interim order suspending his registration will continue to have effect until that appeal is determined. This decision will be confirmed to Mr Ravel in writing. This concludes these proceedings. Page 17 of 17