Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 16 July 2018 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of registrant: NMC PIN: Part(s) of the register: Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: John Darnley 96Y0079E Registered Nurse Sub Part One Adult Nursing 22 March 1999 England Misconduct and Health Sara Nathan (Chair, lay member) Judith Robbins (Registrant member) Christine Moody (Lay member) Douglas Readings Lesley Rudd Not present but represented by Chris Geerings, Counsel instructed by Royal College of Nursing (RCN) Represented by Assad Badruddin, Case Presenter. Consensual Panel Determination: Facts proved: Fitness to practise: Sanction: Interim Order: Accepted All Impaired 6 months suspension order 18 months suspension order 1
Details of charge (as amended): That you a Registered Nurse; 1) Suffer from the condition(s) set out in Schedule 1 below. 2) You received a Police Caution for Battery on 4 July 2017 and did not declare it to: 2.1 Nursing and Midwifery Council between 4 July 2017 and 15 October 2017; 2.2 Royal Free London NHS Foundation Trust. And in light of Charge 1 above, and any consequential mental disorder and/or physical health condition(s), your fitness to practise is impaired by reason of your physical and/or mental health; and in light of charge 2 above your fitness to practise is impaired by reason of your misconduct. 2
Decision and reasons on application to amend the charge The panel heard an application made by Mr Badruddin, on behalf of the NMC, to amend the wording of charge two. The proposed amendment was to include the time period for which the charge is relevant. It was submitted by Mr Badruddin that the proposed amendment would provide clarity and more accurately reflect the evidence. 2. You received a Police Caution for Battery on 4 July 2017 and did not declare it to: 2.1 Nursing and Midwifery Council between 4 July 2017 and 15 October 2017; On behalf of Mr Darnley, Mr Geerings accepted that the change is fair and appropriate. The panel accepted the advice of the legal assessor that Rule 28 of the Rules states: 28. (1) At any stage before making its findings of fact, in accordance with rule 24(5) or (11), the Investigating Committee (where the allegation relates to a fraudulent or incorrect entry in the register) or the Fitness to Practise Committee, may amend (a) (b) the charge set out in the notice of hearing; or the facts set out in the charge, on which the allegation is based, unless, having regard to the merits of the case and the fairness of the proceedings, the required amendment cannot be made without injustice. (2) Before making any amendment under paragraph (1), the Committee shall consider any representations from the parties on this issue. 3
The panel was of the view that such an amendment, as applied for, was in the interest of justice. The panel was satisfied that there would be no prejudice to Mr Darnley and no injustice would be caused to either party by the proposed amendment being allowed. It was therefore appropriate to allow the amendment, as applied for, to ensure clarity and accuracy. Decision and reasons on application under Rule 19 At the outset of the hearing Mr Badruddin made a request that the hearing of Mr Darnley s case be held in private on the basis that proper exploration of this case involves his health. The application was made pursuant to Rule 19 of the Rules. Mr Geerings indicated that he supported the application. The legal assessor reminded the panel that while Rule 19 (1) provides, as a starting point, that hearings shall be conducted in public, Rule 19 (3) states that the panel may hold hearings partly or wholly in private if it is satisfied that this is justified by the interests of any party or by the public interest. Rule 19 states 19. (1) Subject to paragraphs (2) and (3) below, hearings shall be conducted in public. (2) Subject to paragraph (2A), a hearing before the Fitness to Practise Committee which relates solely to an allegation concerning the registrant s physical or mental health must be conducted in private. (2A) All or part of the hearing referred to in paragraph (2) may be held in public where the Fitness to Practise Committee 4
(a) having given the parties, and any third party whom the Committee considers it appropriate to hear, an opportunity to make representations; and (b) having obtained the advice of the legal assessor, is satisfied that the public interest or the interests of any third party outweigh the need to protect the privacy or confidentiality of the registrant. (3) Hearings other than those referred to in paragraph (2) above may be held, wholly or partly, in private if the Committee is satisfied (a) (b) having given the parties, and any third party from whom the Committee considers it appropriate to hear, an opportunity to make representations; and having obtained the advice of the legal assessor, that this is justified (and outweighs any prejudice) by the interests of any party or of any third party (including a complainant, witness or patient) or by the public interest. (4) In this rule, in private means conducted in the presence of every party and any person representing a party, but otherwise excluding the public. Having heard that the case relates to Mr Darnley s health, the panel determined to hold the hearing entirely in private. 5
At the outset of this hearing, Mr Badruddin, on behalf of the NMC, informed the panel that prior to this hearing a provisional agreement of a consensual panel determination ( CPD ) provisional agreement ( the CPD agreement ) had been reached with regard to this case between the NMC and Mr Darnley. The agreement, which was put before the panel, sets out Mr Darnley s full admissions to the facts alleged in the charges, that some of his actions amounted to misconduct, and that his fitness to practise is currently impaired by reason of his misconduct [PRIVATE]. It is further stated in the agreement that an appropriate sanction in this case would be a 6 month suspension order. The panel has considered the provisional agreement reached by the parties. That provisional agreement reads as follows: Consensual Panel Determination: Provisional Agreement 1. John Darnley ( the Registrant ) is aware of the Consensual Panel Determination ( CPD ) hearing. The registrant does not intend to attend the hearing and is content for it to proceed in his and his representative s absence. The Registrant will endeavour to be available by telephone should any clarification on any point be required. 2. The Nursing and Midwifery Council ( the NMC ) and the Registrant PIN 96Y0079E ( the parties ) agree as follows; Preliminary Issues: Amendment of charges 6
3. The parties jointly invite the Panel to make the following amendments to the charge in accordance with Rule 28 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 [ The Rules ]. The Panel has the power to amend the charge so long as this can be done without injustice. 4. The Parties agree that the proposed amendments do not change the allegations materially, but simply set out the charges in a way which more clearly particularises the concerns, and better reflects the case against the Registrant. 5. The Parties invite the Panel to accept the application to amend the following charges: Charge 2.1 Nursing and Midwifery Council Proposed amendment: Nursing and Midwifery Council between 4 July 2017 and 15 October 2017. 6. The reason for the amendment is that the registrant did declare the caution to the NMC in an email on 16 October 2017 (Appendix 1). This was only after his referral for other matters. 7. The amendment more accurately reflects the concern that the registrant did not declare the caution to the NMC as soon as he could in line with The Code of Conduct. Charge: 8. Mr Darnley admits the following charges: That you a Registered Nurse; 7
1) [PRIVATE]. 2) You received a Police Caution for Battery on 4 July 2017 and did not declare it to: 2.1 Nursing and Midwifery Council between 4 July 2017 and 15 October 2017; 2.2 Royal Free London NHS Foundation Trust. And in light of Charge 1 above, [PRIVATE]; and in light of charge 2 above your fitness to practise is impaired by reason of your misconduct. Schedule 1 (Private) [PRIVATE] Agreed Facts: Failing to disclose a Police Caution 9. The Trust conducted a Disclosure and Barring Service ( DBS ) check, which was initiated by the Registrant s conviction [PRIVATE]. The DBS dated 24 July 2017 revealed that the Registrant had received a caution for Battery on 4 July 2017. 10. The Disciplinary Policy and Procedure for the Trust states that an employee must inform their manager or any charge, caution or conviction, relating to acts committed on or off duty, at the earliest possible opportunity. 11. The Registrant accepts that he did not declare the caution to The Trust as soon as possible. 8
12. In addition, the Registrant did not declare the caution to the NMC as soon as possible in accordance with The Code of Conduct 1 23.2 which states tell both us and any employers as soon as you can about any caution or charge against you, or if you have received a conditional discharge in relation to, or have been found guilty of a criminal offence (other than a protected caution or conviction). 13. The Registrant revalidated his practice with the NMC shortly before receiving the caution and as a result there is therefore no assertion of dishonesty. 14. The Registrant only declared the caution upon being referred to the NMC in May 2017 by the Trust in an email dated 16 October 2017 (Appendix 1). The Registrant accepts that this was not as soon as he could. 15. The Registrant resigned from his positon at the Trust on 23 November 2017 [PRIVATE] [PRIVATE] 16. [PRIVATE] [PRIVATE] 17. [PRIVATE]. [PRIVATE] 18. [PRIVATE] 19. [PRIVATE]. 1 Standards of Conduct, Performance and Ethics for Nurses and Midwives 2015 9
20. [PRIVATE] 21. [PRIVATE] 22. [PRIVATE]. Misconduct 23. Misconduct only relates to Charge 2. 24. The leading case of Roylance v GMC (No 2) [2000] 1 AC 311 establishes that: 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. 25. The Registrant admits that the following Codes of Conduct 2 have been breached: Code 20.1 keep to and uphold the standards and values set out in the Code Code 20.4 keep to the laws of the country in which you are practising Code 20.9 maintain the level of health you need to carry out your professional role 26. It is agreed that the breaches of the code amount to serious professional misconduct. Although there is no assertion of any patient harm, this is a Registrant with [PRIVATE] which had resulted in criminal convictions [PRIVATE]. The Registrant failed to disclose those conditions meaning that his employer and regulatory body were unable to conduct necessary risk assessments to assess his fitness to practice. Current Impairment 2 Standards of Conduct, Performance and Ethics for Nurses and Midwives 2015 10
27. Current impairment relates to Charge 1 and 2. 28. Current impairment is not defined in the Nursing and Midwifery Order 2001 or The Nursing and Midwifery Council (Fitness to Practice) Rules 2004 (SI2004/1761). The NMC have defined current impairment as the suitability to remain on the register without restriction. 29. The Registrant accepts that his fitness to practice was and is currently impaired by reason [PRIVATE], adopting the formulation set out by Mrs Justice Cox in CHRE v (1) NMC and (2) Grant [2011] EWHC 927 (Admin) and the questions posed specifically by Dame Janet Smith in her Fifth Report to The Shipman Inquiry. The Registrant acknowledges that a consideration of current fitness to practise looks backwards as well as forwards and accepts that he: Has in the past brought the reputation of the profession into disrepute; Has in the past breached one of the fundamental tenets of the profession. 30. Also said when considering impairment: 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 31. The Registrant accepts that he has in the past brought the profession into disrepute [PRIVATE] and has breached a fundamental tenet of the profession, namely the ability to provide safe and effective care. 11
32. In addition by failing to disclose his Police Caution to his employer or the NMC he failed to allow both organisations to conduct effective risk assessments in relation to his continued practice. 33. [PRIVATE]. 34. [PRIVATE]. 35. [PRIVATE]. 36. [PRIVATE]. 37. [PRIVATE]. 38. [PRIVATE]. 39. [PRIVATE]. The registrant has prepared reflective pieces at Appendix 8 and 9 which deal with his health condition and the failure to disclose his caution. 40. The Registrant also submits for consideration a number of personal references (Appendix 10). 41. The Registrant has also engaged with his GP and has commenced non-nursing employment (Appendix 11). 42. The Registrant s position is, and the NMC accepts that the [PRIVATE] evidence supports this position, [PRIVATE] reason he accepts his fitness to practise is currently impaired and would accept a six month suspension order. 43. The Registrant accepts that wider public interest considerations dictate that the NMC must declare and uphold proper standards of conduct and behaviour. The parties agree that this is a case where a finding of impairment is necessary to maintain public confidence in the profession and its regulator in accordance with the dicta of Cox J in Grant at paragraph 101: 12
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 Regulator 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. 44. Whilst the parties agree that the Registrant s fitness to practice is currently impaired by reason of his [private] misconduct, it remains a matter for the panel s own professional judgement. Sanction 45. The parties agree that the appropriate sanction in this case is a 6 Month Suspension Order with a review. 46. In determining the appropriate sanction, the parties took into account the following aggravating and mitigating features. The aggravating features of this case include: [PRIVATE] 47. The following mitigating features are present; [PRIVATE] [PRIVATE] The Registrant has shown insight into his [PRIVATE] misconduct 48. The parties consider the available sanctions in ascending order of seriousness in accordance with the NMC s Sanctions Guidance and the principle of proportionality. 13
49. In light of the nature of the [PRIVATE] the parties agree that it would not be appropriate to take no further action in this case. Likewise, a caution order would be insufficient to protect the public from the risk of harm posed [PRIVATE]. Neither of these sanctions would satisfy the wider public interest consideration. 50. [PRIVATE] 51. [PRIVATE]. 52. It is for the above reason that the parties agree that a suspension for a period of 6 months with a review is the proportionate sanction in these circumstances. This will also allow time for the registrant to [PRIVATE] prepare himself for a return to work. [PRIVATE]. 53. [PRIVATE] 54. [PRIVATE] 55. The parties considered whether a striking off order would be appropriate in the circumstances. However the parties feel that the Registrants actions are not so incompatible with remaining on the register to necessitate this. [PRIVATE]. Interim Order 56. Due to the basis upon which impairment has been agreed by the parties, it is further agreed that an interim order is necessary for the protection of the public and that it is otherwise in the public interest. 57. The parties have determined that an interim order in the same terms as the substantive order for a period of 18 months is necessary in this case. This is for the purposes of covering the 28 day appeal period before the substantive order takes effect and the duration of any appeal. 14
58. The parties understand that this provisional agreement cannot bind a panel and that the final decision on findings, impairment and sanction is a matter for the panel. The parties understand that, in the event that a panel does not agree with this provisional agreement, the admissions to the charges set out at the first section above, and the agreed statement of facts set out at the second section 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. Factual amendments: Prior to its consideration of this agreement, the panel noted the following factual inaccuracies in it: Mr Darnley although not present was represented by Mr Geerings who was instructed by the RCN. [PRIVATE]. Decision and reasons on the consensual panel determination: The panel decided to accept the proposed CPD agreement, with the factual amendments listed earlier in its determination. The panel accepted the advice of the legal assessor, who referred the panel to the NMC s Sanctions Guidance ( SG ) and to the NMC s guidance on Consensual Panel Determinations. He reminded the panel that it could accept, amend or outright reject the provisional agreement reached between the NMC and Mr Darnley. Further, the panel should consider whether the provisional agreement would be in the public interest. This means that the outcome must ensure an appropriate level of public protection, maintain public confidence in the professions and the regulatory body, and declare and uphold 15
proper standards of conduct and behaviour. The legal assessor also referred the panel to the cases of: Cheatle v GMC [2009] EWHC 645 (Admin), Roylance v General Medical Council (No. 2) [2000] 1 AC 311, CHRE v (1) NMC and (2) Grant [2011] EWHC 927 (Admin) and Cohen v GMC [2008] EWHC 581 (Admin). The panel noted that Mr Darnley admitted the facts of the charges. Accordingly the panel was satisfied that the charges are found proved by way of Mr Darnley s admission as set out in the signed provisional agreement before the panel. The panel then went on to considered whether Mr Darnley s fitness to practise is currently impaired. Whilst acknowledging the agreement between the NMC and Mr Darnley, the panel has exercised its own independent judgement in reaching its decision on impairment. In respect of misconduct the panel noted that Misconduct is relevant only to charge 2 in this case. The panel endorsed paragraphs 23-26 of the CPD agreement. The panel noted that following his conviction for [PRIVATE] in April 2017, Data and Barring Services (DBS) check was initiated on 24 July 2017. This check revealed that Mr Darnley had accepted a caution for Battery on 4 July 2017 which he had not declared to either his employer or the NMC. Taking all of this into account the panel determined that Mr Darnley s behaviour in not disclosing his receiving a police caution on 4 July 2017 does constitute misconduct. [PRIVATE] [PRIVATE], and was therefore not safe to practise without restriction, a finding of impairment was necessary in order to maintain confidence in the nursing profession and in the NMC as a regulator. The panel also had regard to the seriousness of the 16
misconduct in this case, and considered that a finding of impairment was also necessary to declare and uphold proper standards of conduct and performance. The panel therefore determined that a finding of impairment was necessary on public protection grounds, in relation to Mr Darnley s [PRIVATE] misconduct. Having found Mr Darnley s fitness to practise currently impaired the panel went on to consider what sanction, if any, it should impose in this case. The panel bore in mind that any sanction imposed must be appropriate and proportionate. The purpose of any sanction is not intended to be punitive even though it may have a punitive effect. The panel had careful regard to the SG. The decision on sanction is a matter for the panel exercising its own independent judgement. The panel considered this case carefully and has decided to make a suspension order for a period of 6 months. The effect of this order is that the NMC register will show that Mr Darnley s registration has been suspended. The panel accepted the aggravating and mitigating factors in this case as set out in paragraphs 45 and 58 of the CPD agreement. In addition, the panel considered that Mr Darnley has shown considerable insight into his misconduct [PRIVATE], there has been no patient harm caused and the panel is unaware of any previous issues during Mr Darnley s long career as a nurse. The panel determined that taking no action and imposing a caution order would not be appropriate in this case given the serious nature of Mr Darnley s misconduct [PRIVATE]. The panel went on to consider whether to impose a conditions of practice order. The panel was of the view that any conditions of practice should be practicable and workable. [PRIVATE] it would be inappropriate and potentially detrimental to Mr Darnley to impose a conditions of practice order. 17
The panel went on to consider the proposed sanction in the CPD agreement, that of a 6 month suspension order. [PRIVATE]. This order will be reviewed shortly before it is due to expire. A future reviewing panel will be assisted by evidence of the following: [PRIVATE] [PRIVATE] Mr Darnley s attendance [PRIVATE] ; Testimonials from employers, including both medical and non-medical settings The panel determined to impose an interim suspension order for a period of 18 months. This decision will be confirmed to Mr Darnley in writing. That concluded this determination. 18