Conduct and Competence Committee Substantive Meeting (CPD) Date: Thursday 13 August 2015 Nursing and Midwifery Council 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of Registrant Nurse: NMC PIN: Ian Murray Duncan 91I2250E Part(s) of the register: Registered Nurse Sub Part 1 Adult Nursing December 1994 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Facts proved: Fitness to practise: Sanction: Interim Order: England Caution Eileen Skinner (Chair Lay member) Colin Kennedy (Lay member) Catherine Gale (Registrant member) Suzanne Palmer Calvin Ngwenya All (admitted) Impaired (admitted and so found) Striking off order Interim suspension order 18 months 1
Details of charges That you, a registered nurse: 1. On 23 rd May 2014 received a caution for possessing indecent photographs / pseudo-photographs of a child, in that on 05/12/2012 at Northampton had in your possession indecent photographs, namely 2x videos through OMEGLE chat room, of children, contrary to Section 160(1), (2a) and (3) of the Criminal Justice Act 1988. And, in light of the above, your fitness to practise is impaired by reason of your caution. Decision on service The panel received evidence that the notice of this hearing was sent by recorded delivery and first class post to Mr Duncan on the 24 July 2015 to his registered address and was delivered on 25 July 2015. The panel heard and accepted the advice of the legal assessor. The legal assessor referred the panel to the case of R v (1) John Ashton, (2) Omar Draz, (3) Darren O Reilly [2006] EWCA Crim 794 and advised the panel that it has jurisdiction to accept waiver of the normal 28 day notice period if it is satisfied that there is no unfairness to the parties. The panel accepted that Mr Duncan had waived notice of the meeting as, in an email to the case officer dated 22 July 2015, he stated he was content for his case to be disposed of at a meeting and that he waived his right to the full 28 days notice of a meeting. The panel was satisfied in those circumstances that there was no prejudice to Mr Duncan caused by the later notice period. 2
The panel is satisfied that, in accordance with Rules 11(A) and 34 of the NMC Fitness to Practise Rules 2004, service of notice has been duly effected. Consensual Panel Determination ( CPD ) In this substantive meeting the panel was presented with a provisional agreement for a Consensual Panel Determination ( the CPD ) with regard to this case. The agreement was between Mr Duncan and the NMC. The agreement sets out Mr Duncan s admission of the charges, and his admission that his fitness to practise is currently impaired by reason of his caution. It is agreed in the CPD that the appropriate sanction in this case would be a striking off order. The agreement was signed by Mr Duncan, on 21 May 2015, and on behalf of the NMC on 24 July 2015. The provisional CPD reads as follows: Conduct and Competence Committee Consensual panel determination: provisional agreement The Nursing and Midwifery Council ( NMC ) and Ian Duncan, PIN 91I2250E ( the parties ) agree as follows: 1. The Charge 1. Ian Duncan ( the registrant ) admits the following charge: That you, a registered nurse: On 23 rd May 2014 received a caution for possessing indecent photographs / pseudo-photographs of a child, in that on 05/12/2012 at Northampton had in your possession indecent photographs, namely 2x videos through OMEGLE chat room, of children, contrary to Section 160(1), (2a) and (3) of the Criminal Justice Act 1988. 3
And, in light of the above, your fitness to practice is impaired by reason of your caution. 2. The Facts 2. The facts that gave rise to the caution can be stated as follows: 3. The registrant was referred to the NMC on 28 February 2014 by his former employer, Milton Keynes NHS Foundation Trust ( the referrer ), who had employed the registrant as a Clinical Site Manager at Milton Keynes Hospital since June 2005. 4. The referrer alleged that the registrant had been arrested by police on 27 February 2014 on suspicion of accessing child pornography from his home computer. The registrant had been released on police bail with conditions, which included measures to prevent him having access to children. The registrant was suspended from duty at the Trust and subsequently resigned in March 2014. 5. A further referral was received from Northampton Police on 10 March 2014 in line with the notifiable occupation scheme. It was confirmed in that referral that the registrant had been arrested on 27 February 2014 and released on police bail until 23 May 2014. 6. The registrant contacted the NMC on 29 May 2014 to state that he had appeared at Northampton Police Station on 23 May 2014 and had received a caution for one offence of possessing indecent photographs of a child. 7. On 7 July 2014, at the request of the NMC, the registrant provided the NMC with a copy of the caution. Northampton Police have also provided a copy of the caution, which states as follows: 4
On 05/12/2012 at Northampton had in your possession indecent photographs, namely x2 videos through OMEGLE chat room, of children, Contrary to Section 160(1), (2A) and (3) of the Criminal Justice Act 1988. 8. In a letter dated 14 January 2015 Northampton Police disclosed the facts that gave rise to the caution, namely that: Information was received from another force that Mr Duncan s computer was being used to view indecent videos of children. A warrant was executed and Mr Duncan arrested on 27 th February 2014. Upon interview he admitted watching gay pornography and that involving a child. The hard drive of his computer was subsequently destroyed by him. There is no evidence of distribution of images or exchanging any images. Mr Duncan was subsequently cautioned for this offence. 3. Response from Registrant 9. The Registrant waives his right to receive the relevant notice requirements for this Consensual Panel Determination hearing. In addition, whilst the registrant understands that he may attend the Consensual Panel Determination hearing and/or be represented at that hearing, the registrant is content for the Consensual Panel Determination hearing to proceed in the absence of himself and/or his representative if he is not present. 10. On 16 February 2015 the Registrant sent an email to the NMC in which he stated: I apologise unreservedly for my actions that have led to this investigation. I admitted to the allegation by the police and have received a caution from them. The incident I can only say is totally out of character for me, and has not and will not ever be repeated. 5
I completely appreciate the seriousness of the incident and realise that the NMC will take an extremely dim view towards it and rightly so. All I can ask is that the panel consider my unblemished and committed career in nursing for 23 years as it has meant the world to me and was indeed a true vocation. I know through my stupid actions I have destroyed my privileged position within nursing. I will regret this for the rest of my life. I can only say again that I am deeply sorry. 11. In a further letter dated 12 March 2015 the Registrant informed the NMC that he retired from the Trust in March 2014 and is now a full time carer for his father who lives with him. The registrant stated that he had made a mistake that he bitterly regrets but that he now needs to try and move on with his life. The registrant further stated that, I will accept whatever decision the NMC delivers, and apologise for the time and resources that have been used to investigate my mistake. Finally, the registrant confirmed that as he did not intend to attend a hearing, any hearing date would be suitable for him. 4. Impairment 12. The registrant admits that his fitness to practise is impaired by reason of his caution because he: i) Has in the past brought and/or is liable in the future to bring the profession into disrepute; and/or ii) Has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession. 13. The registrant accepts that his actions amounted to a significant and serious departure from the standards expected of a registered nurse. Specifically, the registrant accepts that his actions amounted to a breach of the following parts of 6
The Code: Standards of conduct, performance and ethics for nurse and midwives (2008): i) Point 49: You must adhere to the laws of the country in which you are practising; i) Point 61: You must uphold the reputation of your profession at all times. 14. The parties agree that, whilst the registrant has expressed remorse and recognition of the seriousness of the offence, the nature of the offence for which the registrant accepted a police caution is such that a finding of impairment is necessary to maintain public trust and confidence in the profession and the NMC as a regulator. 5. Sanction 15. The appropriate sanction in this case is a striking off order. 16. It is agreed between the parties that this is not a matter in which it would be appropriate to take no further action, in that such a sanction would not be sufficient to mark the seriousness of the offence for which the registrant was cautioned. Similarly, it is agreed that a caution order is not an appropriate sanction as this is not a case which can be said to be at the lower end of the spectrum of impaired fitness to practice (para 64 of ISG), nor would such an order be sufficient to protect the public interest in this case. 17. It is further agreed that a conditions of practice order would not be adequate to protect the public interest (para 66.1 of ISG). Furthermore, there are no identifiable areas of the registrant s practice in need of retraining, in that the registrant has not worked as a nurse since his resignation in March 2014 and has no intention of returning to nursing (paras 67.2 and 67.4 of ISG). Having regard to the nature of the conviction, it would not be possible to formulate conditions that would be effective and to make provision to adequately monitor such conditions (para 67.9 of ISG). 7
18. Given the nature and seriousness of the criminal offence for which the registrant received a police caution, a suspension order would not be adequate in this case to protect the public interest (para 69.2 of ISG). The extent of the registrant s departure from the standards to be expected of a registered nurse and the risk of harm to the public interest caused by that departure is such that a suspension order would be insufficient to maintain public confidence in the profession and the regulatory body. Given the nature of the offence for which the registrant was cautioned, the registrant s conduct is fundamentally incompatible with continuing to be a registered nurse. 19. In light of the nature and seriousness of the criminal offence for which the registrant received a police caution, a striking off order is the only sanction sufficient to protect the public interest and to maintain public confidence in the nursing profession and the NMC as a regulator (paras 74.1 74.3 of ISG). The registrant s behaviour is fundamentally incompatible with being a registered professional, in that his conduct amounted to a serious departure from The Code: Standards of conduct, performance and ethics for nurse and midwives (2008) (para 75.1 of ISG). Finally, the registrant s behaviour gave rise to a police caution for serious misconduct of a sexual nature involving child pornography (paras 75.4 and 75.8 of ISG). 20. In all the circumstances, it is agreed that the appropriate sanction is a striking off order. 6. Interim Order 21. It is agreed that it is otherwise in the public interest for an interim suspension order to be imposed for a period of 18 months to cover the appeal period. 7. Conclusion 8
22. The parties understand that this provisional agreement cannot bind a panel, and that the final decision on findings of 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 section 1 above, and the agreed statement of facts set out at section 2 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. Panel s decision The panel heard and accepted the advice of the legal assessor. It had sight not only of the CPD but also of a bundle of documents consisting of 96 pages. It took all the documentation into account when reaching its decision. Determination on facts The panel found the charge proved on the basis of admissions made by Mr Duncan. The panel considered that the background and the relevant facts were accurately summarised in paragraphs 1-8 of the CPD. Determination impairment In reaching its decision on impairment the panel had regard to all the information before it. The panel was mindful that whilst Mr Duncan has admitted that his fitness to practise is currently impaired by reason of his caution, this is a matter for the panel s independent judgment. The panel noted that Mr Duncan was remorseful and apologetic for his actions and showed insight in his written submissions, as summarised in paragraphs 9-11 of the CPD. However, the panel considered that Mr Duncan s fitness to practice is currently 9
impaired. It concurred with and adopted the reasons set out by the parties in paragraphs 12-14 of the CPD. Determination on sanction In reaching its decision on sanction the panel had regard to all the information before it. The panel was mindful that the sanction agreed between the parties was a striking off order. The panel took into account the advice set out in the Indicative Sanctions Guidance ( ISG ). It had regard to the principle of proportionality, weighing Mr Duncan s interests against the public interest. The panel bore in mind that the purpose of a sanction is not to be punitive, although it may have that effect, but is intended to protect patients and the wider public interest. The wider public interest includes maintaining public confidence in the profession and the NMC as a regulator, and declaring and upholding proper standards of conduct and behaviour. The panel agreed with the parties that in the circumstances of this case, a striking off order is the only sanction sufficient to protect the public interest and to maintain public confidence in the nursing profession and the NMC as a regulator. The panel considered lesser sanctions in increasing order of severity, as directed by the ISG. However it concluded that no lesser sanction would suffice in this case. It concurred with and adopted the reasons set out in paragraphs 15-20 of the CPD. For the reasons set out above, the panel has determined that the proposed consensual panel determination is the appropriate course to be taken. The panel also endorsed the comments made in paragraph 21 of the CPD and determined that an interim suspension order for 18 months should be imposed pending any appeal. The panel considered that an interim suspension order was necessary for the protection of members of the public and was otherwise in the 10
public interest, for the reasons set out within the substantive decision on sanction. The panel considered that 18 months was the appropriate period in order to allow any appeal, if brought, to be determined. This decision will be confirmed to Mr Duncan in writing. That concludes this determination. 11