Notice of Decision of the Northern Ireland Social Care Council s Conduct Committee

Notice of Decision of the Northern Ireland Social Care Council s Conduct Committee Name: Radu Nasca SCR No: 6005361 Date: 22 August 2014 NOTICE IS HEREBY GIVEN THAT the Conduct Committee of the Northern Ireland Social Care Council, at its meeting on 18 August 2014, made the following decision about your registration with the Northern Ireland Social Care Council: The Committee found the facts proved; The Committee found that you have committed misconduct; The Committee decided to make an Order for removal of your registration from the Register ( a Removal Order ). Charge: That, being registered under the Health and Personal Social Services Act (Northern Ireland) 2001 (as amended), and whilst employed as a Care Assistant: 1. On 8 October 2013 you were convicted at Armagh Magistrates Court of the following offence in relation to a Service User: (i) Defendant on 01/09/2013, in the County Court Division of Armagh & South Down unlawfully assaulted [Service User A], contrary to Section 42 of the Offences Against the Person Act 1861. And your actions as set out above amount to misconduct, such as to call into question your suitability to remain on the Social Care Register. Preliminary Matters Service The Registrant was neither present nor represented at the hearing. Page 1 of 8

Notice of today s hearing was sent to the Registrant by Special Delivery to his registered address on 18 July 2014. An email was sent to his email address on the same date. Both notifications informed the Registrant of the time, date and venue of today s conduct hearing. Disclosure and hearing bundles were sent by Special Delivery to the Registrant s registered address on 01 August 2014. The Notice of Hearing and documents (as above) were returned to the Council on 05 August 2014. The correspondence was not re-sent bearing in mind the content of telephone conversations with staff of the Home on 21 July and 05 August 2014, wherein it was confirmed that the Registrant had returned to Romania. His email address was confirmed to be that referred to above. The Notice of Hearing, together with Disclosure and Hearing bundles, was emailed to the Registrant at his registered email address on 07 August 2014. The Committee is satisfied that the Notice of Hearing has been served on the Registrant pursuant to Rule 3 of the NISCC (Conduct) Rules 2014. The Committee was informed by the Council s solicitor that on 29 April 2014 these proceedings were transferred for consideration under the 2014 Rules. Proceeding in the Absence of the Registrant Mr Conrad Dixon (Council Solicitor) made an application to proceed in the absence of the Registrant, pursuant to Paragraph 14 of Schedule 2 of the 2014 Rules. The Committee was advised that it had a discretion as to whether to proceed in the Registrant s absence. The Legal Adviser emphasised that this was a discretion which the Committee had to exercise cautiously. He referred it to a number of factors which it should consider, including the fact that the Registrant had not actively engaged with the Council at any stage of the proceedings. The Committee also noted the Registrant had not made any application to postpone the proceedings. Having considered the issue, the Committee reached the unanimous decision that it was appropriate to proceed in the Registrant s absence. The Committee was satisfied that the Registrant had voluntarily waived his right to attend the hearing, and took the view that there was a public interest in proceeding without further delay. The Committee observed that if it was to postpone the hearing, there was no reason to believe that the Registrant would be any more likely to attend on a future date. Background The Registrant is registered on Part 2 of the Social Care Register. On 01 September 2013, he was employed as a care assistant at a residential care home ( the Home ) for males with various psychiatric conditions. The Charge against the Registrant relates to an incident on that date, and to his subsequent conviction arising from that incident. Page 2 of 8

Evidence Mr Dixon applied, pursuant to Paragraph 11 of Schedule 2 to the 2014 Rules, to admit into evidence a bundle of documents prepared by the Council. Those documents had been forwarded to the Registrant (see above). The Committee received the bundle of documents into evidence pursuant to Paragraph 11. The bundle included a Certificate of Conviction, dated 19 December 2013. That Certificate is to be regarded as conclusive proof of the facts or conviction so found, pursuant to Paragraph 11 (5) of Schedule 2 to the 2014 Rules. The bundle of documents included various statements prepared by the Police in respect of the investigation of the incident on 01 September 2013. As part of its own investigation, the Council secured a statement (dated 14 February 2014) from Ms Sonya Rainer. Her statement was viewed by the Committee and was admitted into evidence. She provided oral evidence to the Committee in accordance with that statement. Ms Rainer informed the Committee that she is employed as a care assistant at the Home. She said that on 01 September 2013, she was on duty upstairs in the care home in the company of the Registrant. At Paragraph 8 of her statement, Ms Rainer comments as follows: We were in the Day Room at approximately 7.15-7.20pm. The sofa in the Day Room is against the wall below the window. The TV is to the right of the sofa in the corner. I was sitting on the right hand side of the sofa watching the TV. [SERVICE USER A] was approximately 2-3 metres in front of me in a chair. Radu Nasca was walking around the room. [SERVICE USER A] was shouting. This is not uncommon behaviour for [SERVICE USER A]. From the corner of my eye while I watched TV I saw Radu Nasca slap [SERVICE USER A] on the back of the head and I heard a crack. I then immediately turned round and [SERVICE USER A] said He hit me. Radu Nasca then asked [SERVICE USER A] Do you want some more? [SERVICE USER A] said No I do not want any more. Radu Nasca then raised his hand above his head and slapped [SERVICE USER A] a second time. It was an open handed slap across the back of [SERVICE USER A] s head. The police statements referred to above include one dated 01 September 2013 from Constable Walker Cheevers, wherein he states as follows: On Sunday 1 st September 2013 I was on duty and in uniform along with Constable Bruce. At approximately 20:45 hours I attended [the Home] at [section removed] reference an allegation that a member of staff had assaulted one of the residents. I was introduced to the male victim who I now know to be [SERVICE USER A] The nurse in charge Kathleen Hyde in my presence asked [SERVICE USER A] what had happened him today and he replied I got slapped on the head. Due to [SERVICE USER A] s age and demeanour no further questions were put to him. A further police statement (dated 05 September 2013 and made by Constable Adrian Sands) confirms that during police interview, the Registrant made a full admission in relation to the complaint. Page 3 of 8

Finding of Facts Based on the matters referred to above, the Committee is satisfied that the facts stated in the Charge have been proven on the balance of probabilities. The Committee notes that the Registrant pleaded guilty to a criminal charge arising from the incident on 01 September 2013. Furthermore, the Certificate of Conviction is conclusive for the purposes of Paragraph 11 (5) of Schedule 2 to the 2014 Rules. Misconduct Paragraph 2 (1) of the NISCC (Conduct) Rules 2014 defines misconduct as conduct which calls into question the suitability of a Registrant to remain on the Register. A useful definition of the term misconduct was given by Lord Clyde in Roylance v the General Medical Council [1999] UKPC16 and commented on in Disciplinary and Regulatory Proceedings (5 th Ed.) (Harris): misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances. The same principle applies to a social care worker. The Committee is satisfied on the balance of probabilities that the Registrant is guilty of misconduct in relation to the Charge. The Registrant s actions were a clear breach of the NISCC Code of Practice for Social Care Workers (September 2002), and in particular: Code 3: As a social care worker, you must promote the independence of service users while protecting them as far as possible from danger or harm. This includes: 3.8 Recognising and using responsibly the power that comes from your work with service users and carers. Code 5: As a social care worker, you must uphold public trust and confidence in social care services. In particular, you must not: 5.1 Abuse, neglect or harm service users, carers or colleagues; 5.8 Behave in a way, in work or outside work, which would call into question your suitability to work in social care services. The reasons for the finding of misconduct are as follows: The Registrant was employed as a care assistant. It was his job to provide general care to vulnerable service users for whom he had day-to-day responsibility. Instead of providing care, he did the opposite. He struck an elderly service user and then asked that service user Do you want some more? He proceeded to assault the service user once more. This was absolutely appalling behaviour. He pleaded guilty to a charge of unlawful assault. Page 4 of 8

The Court clearly took a dim view in relation to the entire matter because the Registrant was imprisoned for three months, albeit that the sentence was suspended for one year. He was also directed to pay compensation of 400. The serious nature of the Registrant s offending falls far short of the type of behaviour which should reasonably be expected from a member of the profession. Such behaviour calls into question the Registrant s suitability to remain on the Social Care Register and amounts to misconduct for the purposes of the Rules. Sanction In deciding what sanction to impose, the Committee has taken into account: a. The seriousness of the Registrant s misconduct; b. The protection of the public; c. The public interest in maintaining confidence in social care services; and d. The issue of proportionality. The Committee has considered all sanctions available to it and, having considered the NISCC Indicative Sanctions Guidance for Conduct Committees (April 2014), has decided to make an Order for removal of the Registrant s registration from the Register. Having considered all of the evidence in this case, the Committee is deeply concerned about the nature of the Registrant s misconduct and repeats its reasons for the finding of misconduct as above. The Registrant assaulted a vulnerable service user on two occasions in close succession. The Committee has already described his behaviour as appalling. The Committee is aware that punishment is not the primary purpose when considering the various sanctions available to it. Rather, the primary function of a sanction is to address public safety from the perspective of the risk which a Registrant may pose to those who require his or her services. The Committee has given appropriate weight to the wider public interest when reaching its decision on sanction, and is aware that the wider public interest includes: 1. The deterrent effect to other Registrants; 2. The reputation of the profession; 3. Public confidence in the regulatory process. In view of the foregoing, and in accordance with best practice, the Committee has considered all sanctions in ascending order as follows: Admonishment this sanction may be more appropriate where the behaviour is at the lower end of the spectrum of misconduct. It may also be appropriate where there is a low risk of recurrence, and where the behaviour complained of is of itself minor in nature and does not involve serious wrongdoing. The Committee is not at all Page 5 of 8

satisfied that the behaviour in this case was in any way minor, or at the lower end of the spectrum, and the Committee has already commented that the Registrant s behaviour fell short of that which should reasonably be expected from a social care professional. Suspension such an Order would prevent the Registrant from working as a social care professional for a period of up to two years. It would not address the serious nature of his misconduct, nor would it take into account what the Committee regards as a lack of insight in respect of his actions. The Committee cannot be satisfied that misconduct of this type would not be repeated in the future. Removal the Committee regards this sanction as being necessary because of the serious nature of the Registrant s misconduct. He worked as a care assistant and had day to day responsibility for vulnerable service users who suffered from various psychiatric conditions. He assaulted one of those service users. He then asked the service user Do you want some more? He then repeated the earlier assault. The Committee is also deeply concerned that the Registrant had been heard to say Give people like [SERVICE USER A] a week at home with me, we don t medicate them, we beat them. The Committee finds this behaviour and the Registrant s comments to be quite disgraceful. It cannot be ignored that the matters complained of occurred at the Registrant s place of work, during working hours and in the presence of a colleague. The Committee cannot be satisfied that the Registrant had insight into the serious nature of his wrongdoing. It is noteworthy that when cautioned by the police, he initially stated that it was not quite assault. The Committee also notes that the Registrant has not properly engaged with the Committee or with the NISCC since the commencement of its investigation. He has provided no testimonials or references, nor has he given an explanation for his actions. There is no evidence of remorse, nor has there been any indication of rehabilitation. The Committee has taken into account the comments of Mitting J in the case of Neil Parkinson v Nursing and Midwifery Council [2010] EWHC 1898 (Admin) as follows: a nurse found to have acted dishonestly is always going to be at severe risk of having his or her name erased from the Register. A nurse who has acted dishonestly, who does not appear before the Panel either personally or by solicitors or Counsel to demonstrate remorse, a realisation that the conduct criticised was dishonest, and an undertaking that there will be no repetition, effectively forfeits the small chance of persuading the Panel to adopt a lenient or merciful outcome and to suspend for a period rather than direct erasure. The Committee is satisfied that the same legal principles apply in this case. The Registrant has been convicted of assaulting a service user. This is a very serious matter. The NISCC commenced its own investigations and the Registrant has not properly engaged at any stage. In particular, he has not attended or been represented at today s hearing. Page 6 of 8

The Committee is satisfied that confidence in the social care profession generally would be undermined by allowing the Registrant to remain on the Register. The Committee took into account the real prejudice to the Registrant in imposing a Removal Order, and thereby depriving him of a means of livelihood. However, any prejudice to him in imposing a Removal Order is easily outweighed by the interests of the public, service users, potential social care employers and the social care profession generally, in maintaining confidence in the social care profession, and in the NISCC as a professional regulator. The Committee is satisfied that, in the circumstances of this particular case, a Removal Order is wholly proportionate. The existing Interim Suspension Order, dated 29 April 2014 (effective from 18 June 2014), is hereby revoked. Legal Advice Given Service I am showing to the Chair a memo from the Committee Clerk dated 18th August, setting out the efforts that have been made in relation to service and, based on that memo and on Page 5, Paragraph 3 of the Rules as to service of documents, I am content to recommend to the Committee that service has been effected in accordance with the Rules insofar as it is possible for the Council to have served the documents. Proceeding in the Absence of the Registrant The position is that the Committee can proceed in the absence of a Registrant. However, it is something that has to be done with extreme caution and you have to take the utmost care in reaching such a conclusion. The key issue in a situation of this nature is whether a Registrant has voluntarily waived his right to be present or to be represented at the proceedings. A balance must be struck between fairness to the Registrant and the wider public interest that a case of this type should be progressed expeditiously. The various issues raised by the Council's solicitor in relation to this case, such as general lack of involvement with the Council, the serious nature of the charges, and the wider public interest, are all matters that should be taken into account before the Committee reaches its final decision as to whether or not you should proceed in the Registrant's absence. Misconduct The term misconduct is defined within the Rules as 'conduct which calls into question the suitability of a Registrant to remain on the Register'. Page 7 of 8

Sanction The Rules do provide that when considering what sanction to impose, you must, in accordance with Paragraph 25 (2) of the second Schedule, take into account the following matters: 1. The seriousness of the misconduct; 2. The protection of the public; 3. The public interest in maintaining confidence in social care services; and finally, 4. The issue of proportionality. Right of Appeal You have the right to appeal this decision to the Care Tribunal. Any appeal must be lodged in writing within 28 days from the date of this Notice of Decision. You should note that the Conduct Committee s decision takes effect from the date upon which it was made. The effect of this decision is that your entry on the Register has been removed with immediate effect and you should not work as a social care worker. Committee Manager Date Page 8 of 8