Conduct and Competence Committee Substantive Hearing Date: Thursday 4 July 2013 to Friday 5 July 2013

Conduct and Competence Committee Substantive Hearing Date: Thursday 4 July 2013 to Friday 5 July 2013 Nursing and Midwifery Council, The Hilton Belfast, 4 Lanyon Place, Belfast BT1 3LP Name of Registrant Nurse: Mr Otis Tapfumaneyi Mutyambizi NMC PIN: 99Y0144E Part(s) of the register: Registered Nurse Mental Health March 2002 Area of Registered Address: Northern Ireland Type of Case: Misconduct/Conviction Panel Members: Timothy Cole (Chair, Lay member) Geraldine Bevan (Registrant member) Nalini Chavda (Lay member) Legal Assessor: Conor Heaney Panel Secretary: Ben Fielding Representation: Present and represented by Mr Patrick Morgan, Flynn and McGettrick Solicitors Nursing and Midwifery Council: Represented by Mr Tom Hoskins, counsel, instructed by NMC Regulatory Legal Team. Facts proved: 1,2,3,4 Facts not proved: none Fitness to practise: impaired Page 1 of 14

Sanction: 5 year Caution Order Interim Order: N/A Page 2 of 14

Mr Mutyambizi, Details of charge: That you, a registered nurse: 1) On 11 January 2011 at the Petty Sessions District of Lisburn Magistrates Court, Northern Ireland, were convicted of driving a vehicle with excess alcohol and were sentenced to 3 years disqualification and fined 250.00. 2) On 1 March 2011 at the Petty Sessions District of Belfast and Newtownabbey Magistrates Court, Northern Ireland were convicted of: a) driving a motor vehicle without being the holder of a driving licence authorising you to drive a motor vehicle of that class and were sentenced to a fine of 75.00. b) used a motor vehicle without a policy of insurance or such a security in respect of third party risk and were sentenced to a fine of 250 c) obstructing a constable and were sentenced to a fine of 100. 3) On 23 December 2010 without having the consent of the owner took a motor vehicle for your own or another s use. 4) On 26 July 2011 at the Petty Sessions District of Lisburn Magistrates Court, Northern Ireland, were convicted of: a) driving a motor vehicle without being the holder of a driving licence authorising you to drive a motor vehicle of that class and sentenced to a fine of 50.00 and disqualified from driving for 1 year. b) used a motor vehicle without a policy of insurance or such a security in respect of third party risk and were sentenced to a fine of 250.00 were disqualified from driving for 1 year and were ordered to forfeit the said Mercedes car. Page 3 of 14

And in light of the above your fitness to practice is impaired by reason of your conviction(s) in relation to charges 1) and/or 2) and/or 4) above and your misconduct in relation to charge 3). Decision on the findings on facts and reasons: The charges in this matter arose from two incidents in December 2010. You gave evidence under oath to the panel that on 9 December 2010 you had attended a public house to watch a football match with friends. At or around 2345 you left the establishment and sought to get a taxi home along with your friends because, while you did not think you were intoxicated, you were unsure if your blood alcohol concentration was below the limit prescribed by law. At approximately 0100, having failed to hire a taxi you made the decision to drive yourself and your friends home. En route you were stopped by the police and underwent a breath test. You were then arrested on suspicion of driving while under the influence of alcohol and taken to the local police station and having failed an evidential breath sample test you were charged. It is from this incident that charges 1 and 4 arose. On the evening of 23 December 2010 you gave evidence that while your wife was asleep you and a friend took your family car without her permission and drove to a Tesco supermarket to buy groceries. En route you were stopped by the police and admitted that you did not have a driving licence. You also, initially gave the police a false identity. You were then arrested on suspicion of driving a vehicle without a licence and while being taken to the police car then admitted to the constable that you had given a false identity and subsequently provided your correct name. It if from this incident that charges 2 and 3 arose. Having been provided with a copy of the certificate of conviction, the panel finds that the facts, relation to charges 1, 2 and 4, are found 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 of 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. Page 4 of 14

The panel noted that you also admitted all of the charges in this matter including charge 3: 3) On 23 December 2010 without having the consent of the owner took a motor vehicle for your own or another s use. On 1 March 2011 at the Petty Sessions District of Belfast and Newtownabbey you were convicted of without having the consent of the owner or other lawful authority took a motor vehicle and were given a conditional discharge. The panel noted that under the article 6(1) of the Criminal Justice (NI) Order 1996, a conviction resulting in a conditional discharge shall be deemed not to be a conviction for any purpose other than the proceedings in which the order is made. Accordingly the panel found this charge proved by way of your admission. Determination on misconduct and impairment Having announced its findings on all the facts, the panel then moved on to consider firstly whether the facts found proved in relation to charge 3 amount to misconduct and, if so, secondly whether your fitness to practise is currently impaired by reason of misconduct and / or convictions. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. In his submissions Mr Hoskins invited the panel to take the view that your actions amount to a breach of The code: Standards of conduct, performance and ethics for nurses and midwives 2008 ( the code ). He then directed the panel to specific paragraphs and identified where, in the NMC s view, your actions amounted to misconduct: 49 You must adhere to the laws of the country in which you are practising. 61 You must uphold the reputation of your profession at all times. Mr Hoskins referred the panel to the case of Roylance v GMC (no. 2) [2000] 1 AC 311 which defines misconduct as a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances Page 5 of 14

In respect of Charges 1, 2 and 4, Mr Hoskins submitted to the panel that in this matter the panel must determine if your convictions taken individually and collectively were serious in nature and in relation to charge 3, if your proven actions amounted to misconduct. Mr Hoskins submitted that you have been convicted of driving a vehicle with excess alcohol and this was a serious charge. By driving while intoxicated you had placed the public at risk of harm. Further you had also been convicted of driving a motor vehicle without being the holder of a driving licence and without insurance. Mr Hoskins submitted that you had given evidence that if you had been involved in an accident while uninsured this could have serious consequences to any other member of the public that might have been involved and accordingly this was also a serious charge and that it also put the public at risk. In relation to your conviction for obstructing a constable, as represented by charge 2(c), Mr Hoskins referred to your evidence that you gave a false identity to the constable because you had panicked and on realising you had done something wrong admitted this to the constable and gave your correct details. Mr Hoskins submitted that this explanation was not correct and instead the real motivation for providing the false identity was to try and avoid being arrested for not holding a licence or insurance, and it was only on arrest and realising that your attempt to avoid arrest had been unsuccessful did you provide your correct details. He contended you did this in order to minimise the severity of charges you were facing. Mr Hoskins submitted that your actions in obstructing a constable contained an element of dishonesty. Having provided submissions on the conviction charges he moved on to charge 3. Mr Hoskins submitted that while your conditional discharge for the offence of driving a motor without having the consent of the owner could not be considered a conviction at this hearing, you had still broken the laws of the United Kingdom and consequently had breached point 49 of the Code. In being convicted of this offence, he submitted that your actions were serious and fell below the standard to be expected of a registered nurse. He then moved on to the issue of impairment, and addressed the panel on the need to have regard to protecting the public and the wider public interest. This included the need to declare and maintain proper standards and maintain public confidence in the profession and the NMC as a regulatory body. Mr Hoskins referred the panel to the cases of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). Page 6 of 14

Mr Hoskins referred the panel to Exhibit 1 and the extract of your PNC check detailing your previous convictions. Mr Hoskins noted that in 2000 you were convicted at the South Cheshire Magistrates Court for driving whilst disqualified and using a vehicle while uninsured. In 2003 you were convicted at the Manchester City Magistrates Court of driving a motor vehicle with excess alcohol. Mr Hoskins submitted that these previous convictions showed that on the dates of the two incidents that led to the charges in this matter you would have been fully aware of the regulatory regime in the United Kingdom governing the use of a motor vehicle. Therefore by driving a motor vehicle while intoxicated on one occasion, driving while unlicensed and uninsured on two occasions, while fully aware that you should not have done so, Mr Hoskins submitted that you had brought the profession into disrepute in the past. Further you had also breached a fundamental tenet of the profession, namely that a registered nurse should uphold the laws of the country in which they are practising. Mr Hoskins submitted that you had shown only limited insight into the seriousness of the charges, that you had not given a full and frank apology and accordingly it was not possible to rule out repetition of the alleged misconduct in the future. Therefore not only had you brought the profession into disrepute and breached a fundamental tenet of the profession in the past but that it was also likely that you do so again in the future. Mr Hoskins submitted that in this case there was no evidence before the panel that called in to question your clinical practice. However he submitted the panel should find that by bringing the profession into disrepute and breaching a fundamental tenet of the profession, and the risk that you would do so again, your fitness to practice is currently impaired. Mr Morgan on your behalf submitted that the convictions that were the subject of the charges in this matter occurred over a very brief period of the time and you had not offended since December 2011. Further the charges related solely to the driving of a motor vehicle in your personal life and were not connected to your clinical practice as a registered nurse. Mr Morgan submitted that you were not a habitual offender and for these reasons the charges were not serious enough to constitute misconduct. Mr Morgan went on to refer to charge 2(c), namely the obstruction of a constable and submitted that while this was dishonest, it was dishonesty borne out of your panicked response to being stopped by the police and you had confirmed your correct identity in a matter of minutes. Mr Morgan then referred the panel to the circumstances surrounding charge 3. Mr Morgan noted that the car you had taken was the family car and the only reason you had been charged Page 7 of 14

with the offence of taking a car without authorisation was that you and your wife were placed in the unenviable situation that if you did not admit this then the police would have charged your wife with allowing a person to use the vehicle who did not hold a licence and was not insured. Mr Morgan referred the panel to the testimonials on your behalf before the panel that your work as a registered nurse was exemplary and that you had taken rehabilitive steps regarding your driving by attending a Drink/Drive Rehabilitation Course to not only improve your driving skills but to minimise any damage to the reputation of the professions. Accordingly Mr Morgan submitted that your convictions and / or actions did not constitute misconduct and your fitness to practice is not currently impaired. The panel has accepted the advice of the legal assessor which included reference to a number of judgments which are relevant, these included: Roylance v General Medical Council (No 2) [2000] 1 A.C. 311, Ronald Jack Cohen v General Medical Council [2008] EWHC 581 (Admin), Brennan v Health Professions Council [2011] EWHC 41 (Admin), Decision on whether the facts found proved in charge 3 amount to misconduct: When determining whether the facts found proved amount to misconduct the panel had regard to the terms of the code in force at that time, namely the May 2008 edition. The panel in reaching its decision had regard to the public interest and accepted that there was no burden or standard at this stage of proof and exercised its own professional judgement. The panel was of the view that your actions do fall significantly short of the standards expected of a registered nurse, and that your actions do amount to a breach of the code. Specifically; 49 You must adhere to the laws of the country in which you are practising. 61 You must uphold the reputation of your profession at all times. The panel appreciated that breaches of the code do not automatically result in a finding of misconduct. The panel consider charge 3 and if your actions amounted to misconduct. The panel found that while you did take a motor vehicle without authorisation, the vehicle was your family car and the Page 8 of 14

panel considered that there would have been an implied right for you to use the vehicle in most circumstances. The panel noted that there was no evidence before it that you had been implicitly denied authorisation to use the vehicle by its owner, in this case your wife. The panel also considered that if you had not admitted to this charge it would have resulted in your wife being charged with allowing you to use the vehicle while you did not possess a licence and were uninsured with possibly severe ramifications for your family including your children. The panel found that while you have breached point 49 of the Code by your actions, there were extenuating circumstances and determined that it could not be characterised as serious misconduct. The panel therefore finds that misconduct is not made out in this case. Decision on impairment: The panel next went on to decide your fitness to practise is currently impaired by reason of your convictions. The panel found that you have been convicted of six separate offences relating to two incidents in December 2010. The panel considered that by driving a motor vehicle while you were uninsured and unlicensed to do so on two occasions, and while intoxicated on one occasion you placed members of the public at risk of harm and accordingly the panel concluded that these were serious offences. The panel also found that by giving false information to a constable, even if only for a short period of time, you acted dishonestly and in doing so engaged in conduct that fell well below the standard expected of a registered nurse. Regarding insight, you gave evidence as to your reasons for why you chose to drive a motor vehicle, when you knew you were unlicensed to do so, on 10 December 2010 and 23 December 2010. In relation to 10 December 2010 it was because you were unable to find a taxi, even though at the very least you knew that you were unlicensed and suspected that you might be over the legal blood alcohol limited. On 23 December 2010 you drove, even though you knew you were unlicensed because you wanted to get groceries from a Tesco store. However the panel considered that you did not provide any evidence as to why you felt these circumstances justified you breaking the law on each occasion. Page 9 of 14

Further, you have admitted under oath that your actions have brought the professions into disrepute and would reflect badly on your practice in front of patients, colleagues and the wider public, but have expressed limited remorse as to the effect of your convictions on the reputation of the profession and on you as a registered nurse. Nurses occupy a position of privilege and trust in society and are expected at all times to be professional. To justify that trust, nurses must be honest and open and act with integrity. They must make sure that their conduct at all times justifies both their patients and the public s trust in the profession. In this regard the panel considered the judgement of Mrs Justice Cox in the case of Grant in reaching its decision, in paragraph 74 she said; 74. In determining whether a practitioner s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances. Mrs Justice Cox went on to say in Paragraph 76: 76. I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph 25.67 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. 77. 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 Page 10 of 14

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.. The panel find that by being convicted of several offences you have brought the profession into disrepute. Further you have also breached a fundamental tenet of the profession, namely that you have failed to always act lawfully, whether those laws relate to your professional practice or personal life. The panel is of the view that there is a risk of repetition based on limited insight into your actions. Of particular concern to the panel is that you were unable to provide any evidence to the panel as to any justification or extenuating circumstances that could explain why you chose to break the law. The panel also considered your evidence, under cross examination, that you were unable to say with absolute certainty that you would not be convicted of these offences again in the future. The panel acknowledged that none of the convictions before them are related to your clinical practice, but by failing to adhere to the laws of the country in which you are practicing, and doing so on several instances you have breached the Code and brought the profession into disrepute. The panel had borne in mind that its primary function was not only to protect patients but also the wider public interest which includes maintaining confidence in the nursing profession and upholding the proper standards and behaviour. Having regard to all of the above, the panel is satisfied that your fitness to practise is currently impaired. Decision on sanction and reasons: Mr Hoskins referred the panel to the indicative sanctions guidance. Mr Hoskins submitted the question of which, if any sanction should be imposed, was purely a matter for professional judgement of the panel. Mr Morgan submitted that the panel should have regard to both the public interest and your own interest. The purpose of a sanction was to protect the public and the public interest and not to punish you. Mr Morgan drew the panel s attention to, what in his view, were the mitigating factors including: there was no evidence of patient harm; no repetition of the proven charges; Page 11 of 14

you made an early admission to the charges; you have worked as a registered nurse for 11 years; you have not been the subject of any disciplinary process; you have taken rehabilitive steps including the completing of a Drink/Drive Rehabilitation Course; you have provided testimonials confirming your safe clinical practice and your general practitioner has confirmed that there is no evidence that you misuse alcohol or drugs. Mr Morgan submitted that you are the sole provider for your family which included four children. For these reasons Mr Morgan submitted that a caution order should be imposed by the panel. The panel has considered this case very carefully and has decided to make a Caution Order for 5 years. The effect of this order is that your name on the NMC register will show that you are subject to a caution order and anyone who enquires about your registration will be informed of this order. In reaching this decision the panel has had regard to all the evidence that has been adduced in this case. The panel accepted the advice of the legal assessor. The panel has borne in mind that any sanction imposed must be reasonable, appropriate and proportionate, and although not intended to be punitive in its effect, it may have such consequences. The panel had careful regard to the Indicative Sanctions Guidance published by the NMC. It recognised that the decision on sanction is a matter for the panel exercising its own independent judgement. The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of the case. The panel decided that it would be neither proportionate nor in the public interest to take no further action. Next, in considering whether a caution order would be appropriate in the circumstances, the panel took into account the Indicative Sanctions Guidance, which states that a caution order may be appropriate where the case is at the lower end of the spectrum of impaired fitness to practise and the panel wishes to mark that the behaviour was unacceptable and must not happen again.. The panel noted that you made early admissions to the charges and gave evidence to this panel that your convictions had damaged the reputation of the profession and yourself as a registered nurse. You have also engaged with the NMC since referral. The panel has been told that there have been no adverse findings in relation to your practice either before or since these convictions. Page 12 of 14

However the panel also found that by being convicted of several offences related to your driving, including the obstruction of constable, you have called into question the reputation of the professions and have acted in a way that is completely unacceptable for a registered nurse. The panel considered its obligation to maintain proper standards of behaviour and uphold the reputation of the professions was a serious matter in the public interest. The panel wishes to make it clear that if there had been any evidence before it: that you had again been convicted of similar offences since 2010; there was a doubt regarding your clinical practice and / or this was not your first appearance before a practice committee of the Conduct and Competence Committee, the decision of this panel may have been substantially different and it may have considered that you should no longer have the privilege of practising as a registered nurse. The panel considered whether it would be proportionate to impose a more restrictive sanction in this particular matter and looked at conditions of practice. The panel found that this matter is unrelated to your clinical practice and it would not be possible to formulate practical conditions of practice that would address the damage you have caused to the reputation of the profession. The panel concluded that no useful purpose would be served by a conditions of practice order as it is not necessary to protect the public and would not address the public interest in this matter. The panel further considered that a suspension order would be disproportionate in your case. The panel has decided that a caution order would adequately address the public interest in this matter. For the next 5 years your employer or any prospective employer will be on notice that your fitness to practise had found to be impaired and that your practice is subject to a restriction. Having considered the general principles above and looking at the totality of the findings on the evidence the panel has determined that to impose a caution order for the maximum period of 5 years would be the appropriate and proportionate response. It would mark not only the importance of maintaining public confidence in the profession, but also send the public and the profession a clear message about the standards required of a registered nurse. At the end of this period the note on your entry in the register will be removed. However, the NMC will keep a record of the panel s finding that your fitness to practise had been found impaired. If the NMC receives a further allegation that your fitness to practice is impaired, the record of this panel s finding and decision will be made available to any practice committee that considers the further allegation. Page 13 of 14

This decision will be confirmed to you in writing. Page 14 of 14