Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing Consensual Panel Disposal 26 January 2018 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: NMC PIN: James Banks 08I0478S Part(s) of the register: RNHM, Registered nurse sub part 1 Mental health Sept 2011 Area of Registered Address: England Type of Case: Conviction Panel Members: Julia Whiting (Chair, Registrant member) Julia Sirett (Registrant member) Sadia Zouq (Lay member) Legal Assessor: Lucia Whittle-Martin Panel Secretary: Anita Abell Mr Banks: Not present and not represented Nursing and Midwifery Council: Represented by Tania Dosoruth, Case Presenter CPD outcome: Accepted Facts proved by admission: All Fitness to practise: Impaired Sanction: Striking off order Interim Order: Interim Suspension Order -18 months 1
Decision on Service of Notice of hearing: Mr Banks was not in attendance. Written notice of this hearing had been sent to his registered address by recorded delivery and by first class post on 21 December 2017. The panel accepted the advice of the legal assessor. In the light of all of the information available, the panel was satisfied that Mr Banks has been served with notice of this hearing in accordance with the requirements of Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004. Decision on proceeding in the absence of the registrant The panel then considered continuing in the absence of Mr Banks. Ms Dosoruth submitted that the panel should proceed in the absence of Mr Banks. She read from the first paragraph of the agreement which was as follows: Mr Banks is aware of the CPD hearing. Mr Banks does not intend to attend the hearing and is content for it to proceed in his and his representative s absence. Mr Banks and his representative will endeavour to be available by telephone should clarification on any point be required. Ms Dosoruth submitted that it is clear that Mr Banks is aware of today s hearing and has decided not to attend. He has engaged and entered into a consensual panel disposal with the NMC. The panel heard and accepted the advice of the legal assessor. 2
The panel concluded that Mr Banks was aware of today s hearing and had chosen not to attend. He has not requested an adjournment and the panel had no reason to believe that an adjournment would result in his future attendance. Having weighed the interests of Mr Banks with those of the NMC and the public interest in an expeditious disposal of this hearing the panel determined to proceed in his absence. Consensual Panel Determination: The panel considered the provisional agreement reached by the parties, which reads as follows: NMC Fitness to Practice Committee Consensual panel determination: provisional agreement Ms Banks is aware of the CPD hearing. Mr Banks does not intend to attend the hearing and is content for it to proceed in his and his representative s absence. Mr Banks and his representative will endeavour to be available by telephone should clarification on any point be required. The Nursing and Midwifery Council and Mr James John Banks PIN O8I0478S ( the parties ) agree as follows: The Charges That you, a registered nurse, i. Were convicted on 23 May 2017 at the Crown Court sitting at Warwick of one count of Assault Occasioning Actual Bodily Harm. 3
ii. Were sentenced on 23 May 2017 to 16 months imprisonment AND, in light of the above, your fitness to practise is impaired by reason of your conviction. The Agreed Facts 1. The Registrant was employed by the Ministry of Defence ( MOD ) as a health care practitioner on 10 May 2011. He became a Registered Nurse in September 2011. After qualifying, he worked as a Registered Mental Health Nurse with the British Forces in Germany. From 1 June 2015, the Registrant worked in the role of Mental Health Nurse in the Department of Community Mental Health within the Wessex Region. He was convicted of Assault Occasioning Actual Bodily Harm ( the offence ) and sentenced to imprisonment for 16 months. The offence was committed on 25 September 2016. On the date of the offence the Registrant was a Captain in the British Army (as well as being a Registered Mental Health Nurse). 2. The Registrant pleaded guilty to the offence in the Crown Court on the day of his trial. The Judge s sentencing remarks are attached [Appendix 1]. The details of the offence are as follows. 3. In May 2016 the Registrant entered into a relationship with a Miss A, who was a trainee nurse. The relationship was referred to as being inappropriate given [the Registrant s] position of power by the Judge in the Crown Court. The Judge also described the relationship as a not a healthy one. At the time of the offence the Registrant was 33 and Miss A was 24. The Judge described how the relationship featured, from the start, abusive and controlling behaviour on the part of the Registrant. 4. On 24 September 2016 the Registrant and Miss A attended a wedding, although Miss A only attended in the evening after finishing a shift at work. At the end of the 4
evening Miss A fell asleep in a bedroom (which she shared with the Registrant) fully clothed. The Registrant took the opportunity to read messages that were on Miss A s phone. The Judge in the Crown Court described what happened as follows: On that phone you found material you did not like about what [Miss A] had been doing or what you thought she had been doing, or who she had been seeing. You were upset by that. You were incensed by it. It is the sort of situation where people have arguments, but what you did was pick up a jug or kettle of water, pour it over her head as you [sic] slept and started to shout abuse, and saying that you wished you had boiled the kettle. You punched her in her face, you busted her nose is the phrase used. I am not sure it was actually broken, and you hit her with such force that you knocked the teeth braces out of her mouth. You pulled her around by her hair, so that clumps of that hair came out, and are only starting to grow back. You pushed her on the floor, and in a degrading gesture, spat in her face. 5. Following these events, the Registrant refused to let Miss A have her phone back or her keys and he prevented her from leaving the room. Moreover, the Registrant strangled and throttled Miss A and called her named like dirty whore and slag. The Registrant also beat Miss A around the head so hard that her ears were ringing. 6. The Judge described how the Registrant allowed Miss A to leave the room at 05:00. But he kept her phone and because [he] knew about the images on that phone, some of which [he] had asked her to make, and which she was frightened of going further, that was itself a factor about abuse of power that I regard as an aggravating factor. 7. Following the events of of 25 September 2016, Miss A tried to take her own life later that day. She took an overdose and was treated in hospital for one week thereafter. 8. After the incident the Registrant continued to contact Miss A. He claimed that he had acted in self-defence and sought to victim blame citing the content he had found on 5
her phone. The Registrant also sent Miss A threatening phone messages which include one that said You d better lock your door. I ll smash your face in, you fucking cunt. The Judge noted that this was a serious aggravating factor given that you had smashed her face in already, so it was not an empty threat. 9. In sentencing the Crown Court Judge also stated: I regard this as a particularly nasty and serious offence of its kind. I regard you as particularly culpable because you were in a position of power and control over your victim, and because as a senior officer in the army and a psychiatric nurse, you should have known better. But you abused those positions. That breach of trust, and abuse of power, make you particularly to blame The physical assaults which took place in the context of that controlling and bullying behaviour were nasty assaults. You are bigger than her and older, and you had taken away the victim s means of escape from you, her keys and her phone. And this was a sustained assault over a long period of time, as a result of which she lost hair and suffered bruising and other injuries. 10. A medical report that was available to the Crown Court also showed, following the offence, that Miss A suffered from: an adjustment disorder flashbacks, nightmares including nightmares about you throttling her a depressive illness with significant anxiety and post-traumatic stress disorder 11. The Judge also recorded that Miss A is having to reconsider her position as a nurse and in the army because of the PTSD, and she finds it hard to make friendships, and is frightened to be alone with men, because of the way you have made her feel about herself and about a man that she trusted. Miss A has now re-registered as a nurse. Current Impairment 6
12. The Registrant admits that his fitness to practise is currently impaired by reason of his conviction. 13. The parties have considered the questions formulated by Dame Janet Smith in her Fifth Report from Shipman, approved in the case of CHRE v Grant & NMC [2011] EWHC 927 (Admin) ( Grant ) by Cox J. They are as follows: 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. 14. The parties agree that the facts involved in this case do not involve patients being put at unwarranted risk of harm. There are no concerns about the Registrant s clinical skills. 15. The parties agree that the Registrant has brought the reputation of the nursing profession into disrepute and breached fundamental tenets of the profession. 7
16. No dishonesty is alleged in this case. 17. It is submitted that the following paragraphs of the NMC Code are instructive in this case: 1.1 treat people with kindness, respect and compassion 1.5 respect and uphold people s human rights 9.4 support students and colleagues learning to help them develop their professional competence and confidence 20.1 keep to and uphold the standards and values set out in the Code 20.2 act with honesty and integrity at all times, treating people fairly and without discrimination, bullying or harassment 20.3 be aware at all times of how your behaviour can affect and influence other people 20.4 keep to the laws of the country in which you are practising 20.5 treat people in a way that does not take advantage of their vulnerability or cause them upset or distress 20.8 act as a role model of professional behaviour for students and newly qualified nurses and midwives to aspire to 20.10 use all forms of spoke, written and digital communication (including social media and networking sites) responsibly, respecting the right to privacy of others at all times 18. In considering the question of whether the Registrant s fitness to practise is currently impaired, the parties have considered the following authorities. 19. In Meadow v GMC [2006] EWCA Civ 1390, the Court of Appeal emphasised that: The purpose of fitness to practise proceedings is not to punish the practitioner from past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. It is, therefore, an exercise of looking forward and not back. However, in order to form a view, it is evident that you must take account of the way in which the Registrant has acted in the past. 8
20. In Cohen v GMC [2007] EWHC 581 (Admin), the court set out three matters which it described as being highly relevant to the determination of the question of current impairment: 1. Whether the conduct that led to the charge(s) is easily remediable 2. Whether it has been remedied 3. Whether it is highly unlikely to be repeated 21. In Cheatle v GMC [2009] EWHC 927 (Admin) the court gave the following guidance: Remediation is not the only factor and some matters are more easily remedied than others. A Committee is entitled to conclude that a practitioner s past conduct was so egregious that he is not fit to practise without restrictions or maybe at all. 22. The NMC has also considered the comments of Cox J in Grant at paragraph 101: The Committee should therefore have asked themselves not only whether the Registrant continued to present a risk to members of the public, but whether the need to uphold proper professional standards and public confidence in the Registrant and in the profession would be undermined if a finding of impairment of fitness to practise were not made in the circumstances of this case. 23. The Registrant has not provided any reflective piece to the NMC but he recognises that his conduct is incompatible with his continued membership of the nursing profession. The Registrant has decided to pursue a career outside of the nursing profession; he commenced a Master of Laws in International Human Rights Law and Practice at the University of York on 25 September 2017 ( Appendix 2). 24. The parties agree that the conduct in this case is far from easily remediable and that it is so egregious that the Registrant is not fit to practise at all. A finding of impairment is also required to protect the reputation of the profession and declare and uphold proper standards of conduct. 9
25. For the reasons above, the parties agree that the Registrant s fitness to practise is currently impaired. Sanction 26. The appropriate sanction in this case is a Striking-off order. In reaching this agreement, the parties considered the NMC s Sanctions Guidance ( the guidance ), bearing in mind that it provides guidance not firm rules. 27. The aggravating features of the case are as follows: This was a particularly nasty and serious offence of its kind (Judge s sentencing remarks) The Registrant caused significant harm to Miss A (including harm to her physical and mental health) In light of his role in the military and his position as a Senior Officer, the Registrant was in a position of trust which he abused. The Registrant continued to act in a threatening way after the date of the offence by sending Miss A threatening phone messages. 28. The mitigating features of the case are as follows: The Registrant pleaded guilty in the Crown Court (albeit on the day of his trial) The Registrant recognises that his conduct is incompatible with continued NMC registration There are no concerns about the Registrant s clinical practice There are no previous regulatory findings against the Registrant 29. In considering what sanction would be appropriate the parties began by considering whether this is a case in which it would be appropriate to take no further action but given the seriousness of the case and the aggravating factors (set out above) that would be completely inappropriate. 10
30. The parties next considered whether a Caution Order would be appropriate. The guidance states that a caution may be appropriate where the case is at the lower end of the spectrum of impaired fitness to practise. But the parties agree that this case is at the upper end of the spectrum of impaired fitness to practise. A Caution Order would be insufficient to deal with the public interest considerations in this case. 31. The parties went on to consider whether a Conditions of Practice Order would be appropriate but they concluded that such an order would be inappropriate as the primary purpose of a Conditions of Practice Order is to address clinical failings and there are none in this case. A Conditions of Practice Order would also be insufficient to protect the reputation of the profession. 32. The parties went on to consider whether a Suspension Order would be appropriate. The guidance states that suspension may be appropriate where there is no evidence of harmful deep-seated personality or attitudinal problems. But the parties agree that the Registrant s conduct does raise serious concerns about the Registrant s character, attitude and temperament. 33. Finally, the parties considered the ultimate sanction of a Striking-off Order. The guidance contains the following indicative factors which apply in this case: A serious departure from the relevant professional standards as set out in key standards, guidance and advice. Doing harm to others particularly patients or other people the nurse or midwife comes into contact with in a professional capacity... Harm may include physical, emotional and financial harm. The seriousness of the harm should always be considered. 11
Abuse of position, abuse of trust, or violation of the rights of patients, particularly in relation to vulnerable patients. Any violent conduct, whether towards members of the public or patients, where the conduct is such that the public interest can only be satisfied by removal. Convictions or cautions involving any of the conduct or behaviour in the above examples. 34. In light of the indicative factors identified above and all of the circumstances of this case the parties agree that the reputation of the nursing profession can only be protected by permanently removing the Registrant from the NMC s register. Therefore, the only appropriate and proportionate sanction is that of a Striking-off Order. 35. Finally, the parties agree that an interim order is required in this case to cover the appeal period. The parties agree that there should be an interim suspension order for a period of 18 months on public interest grounds: given the nature of the conduct involved in this case, the public would be concerned if the Registrant were permitted to practise on an interim basis pending the coming into force of the substantive sanction or the outcome of any appeal. 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 and the agreed statement of facts set out (set out 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. 12
Signed James Banks Dated 18 Jan 2018 On behalf of the NMC Dated 22 Jan 2018 Panel determination When reaching its decision the panel took into account all the information before it, which consisted of the Agreement and one Appendix (the Judge s sentencing remarks in full), and information about Mr Banks current course of study at the University of York, and the submissions made by Ms Dosoruth on behalf of the NMC. The panel heard and accepted the advice of the legal assessor. The panel found the facts, as admitted by Mr Banks, proved. Impairment The panel took account of Mr Banks s admission of current impairment, however it also bore in mind that this is a matter for the panel s professional judgement. When considering the case of Grant, the panel concurred with paragraphs 13-16 of the agreement that Mr Banks violent behaviour and conviction brought the reputation of the profession into disrepute, and breached fundamental tenets of the profession. The panel agreed that there had been no patient harm and there was no dishonesty in this case. 13
The panel next considered whether Mr Banks behaviour was in breach of the NMC Code. It concluded that Mr Banks breached the paragraphs of the Code as set out in paragraph 17 of the agreement. In relation to the case of Cohen the panel agreed in particular paragraphs 23 and 24 of the Agreement, which indicates that Mr Banks has not provided any reflective piece or undertaken any other form of remediation. In any event, the panel considered that it would be very difficult to demonstrate remediation of violent behaviour of this nature. When considering the risk of repetition the panel took into account that whilst this is the only conviction the judge, when considering the appropriate sentence, specifically stated..it is a feature of cases of this kind that they often involve a course of conduct that has not been reported. I am not suggesting that there is such a course of conduct in evidence before this court, I am just saying that I am not prepared to treat this as if it were an isolated incident. Taking the lack of remediation into account, and the nature of the behaviour in question, the panel concluded that there was a significant risk of repetition. The panel therefore concluded that Mr Banks fitness to practise is currently impaired. Sanction The panel exercised its own judgement in reaching its decision on sanction and applied the principle of proportionality at all times. It took into account the NMC s Sanctions Guidance (SG). Under Article 29 of the Nursing and Midwifery Council Order 2001, the panel can take no further action or impose one of the following sanctions: make a caution order for one 14
to five years; make a conditions of practice order for no more than three years; make a suspension order for a maximum of one year; or make a striking off order. The panel has borne in mind that the purpose of a sanction is not to be punitive, though it may have a punitive effect. When reaching its decision on sanction, the panel took into account the mitigating and aggravating factors in the case as outlined in paragraphs 27 and 28 respectively. The panel considered the sanctions in ascending order of seriousness. The panel concurred with paragraphs 29 and 30 that the behaviour in this case could not be addressed through taking no further action, or imposing a caution order. This is a serious case where the behaviour can be described as being at the higher end of spectrum of impaired fitness to practise and, as such, a sanction at the higher end of the scale is appropriate and proportionate. The panel next considered conditions of practice order. The panel concluded this is not an appropriate order as there are no clinical concerns in this case, and it would not address the public interest considerations The panel next considered a suspension order. The panel took into account that the agreement, which Mr Banks has signed, specifically states at paragraph 32: the Registrant s conduct does raise serious concerns about the Registrant s character, attitude and temperament. The panel agreed that Mr Banks conduct does raise serious concerns about his character, attitude and temperament, indicative of harmful, deep-seated personality or attitudinal problems. The panel therefore concluded that a suspension order would not address the seriousness of Mr Banks behaviour in this case. 15
The panel then considered a striking off order and agreed that the five indicative factors set out in paragraph 33 were engaged in this case. The panel therefore concluded that a striking off order was appropriate and proportionate. It is the only sanction that is sufficient to protect the public interest in upholding standards of behaviour in the profession and to maintain confidence in the profession and in the NMC as the regulator. The panel next considered the issue of an interim order. The panel considered that it was necessary to impose an interim order on public interest grounds alone. Unlikely as it is given his participation in this Agreement, should Mr Banks, for whatever reason, decide to appeal this decision, it would not be in the public interest to have a nurse, whose fitness to practise has been found to be currently impaired, working without any restriction in these circumstances. 16