Conduct and Competence Committee Substantive Meeting Monday 17 October 2016 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of Registrant Nurse: NMC PIN: Miss Vicky Cross 10I0617E Part(s) of the register: RNA, Registered Nurse (sub part 1) Adult (17 November 2010) Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: England Caution/Conviction Mr David Newman (Chair/ Lay member) Ms Carla Hartnell (Registrant member) Mr Joseph Magee (Lay member) Mr Michael Levy Miss Bose Kayode Facts proved: (1)(a), (1)(b), (2) and (3) Facts not proved: Fitness to practise: Sanction: Interim Order: N/A Impaired Striking off order Interim suspension order 18 months 1
Charges: That you, a registered nurse: 1) On 5 March 2014 accepted a police caution from Thames Valley Police for: a) Possession of a controlled drug Class B cannabis / cannabis resin on 10 January 2014 contrary to section 5(2) of the Misuse of Drugs Act 1971. b) Possession of a controlled drug Class C on 10 January 2014 contrary to section 5(2) of the Misuse of Drugs Act 1971. 2) On 27 July 2015 were convicted at the Crown Court sitting at Aylesbury of possessing a controlled drug with intent to supply Class B other on 27 November 2014, contrary to 5(3) of the Misuse of Drugs Act 1971. 3) On 9 March 2016 were convicted at the Crown Court sitting at Aylesbury of possess with intent to supply of a controlled drug Class C other on 27 November 2014 contrary to 5(3) of the Misuse of Drugs Act 1971. And your fitness to practise is impaired by reason of your caution in charge 1 and/or conviction in charges 2 and 3. 2
Determination on service: The panel has considered all the information provided and has heard and accepted the advice of the legal assessor. The panel has concluded that service of notice has been effected in accordance with the Rules. The letter giving notice was posted by the Royal Mail signed for service on 12 September 2016 to the registered address of Miss Cross, stating that a substantive meeting would take place on or after 17 October 2016. 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 and sufficient notice has been given as required by the Rules. 3
Background: On 12 November 2015, the NMC received an email from Miss Cross in which she stated that she was waiting to be convicted of intent to supply a class B drug. It is alleged that Miss Cross received a police caution on 5 March 2014 for the possession of class B and C drugs on 10 January 2014. It is also alleged that Miss Cross was convicted on 27 July 2015 of possessing a controlled class B drug on 27 November 2014 with intent to supply and was convicted on 9 March 2016 of possessing a controlled class C drug on 27 November 2014 with intent to supply. Miss Cross was sentenced for the offences on 18 April 2016. 4
Decision on the findings on facts: In reaching its decision on the facts the panel took into account all the documentary evidence provided in this case which included the following documents: Signed Caution Form dated 5 March 2014 Sentencing remarks dated 15 April 2016 Certificate of conviction dated 28 April 2016 Police report The panel heard and accepted the advice of the legal assessor who reminded it of the burden of proof borne by the NMC and the standard of proof being on the balance of probabilities. This means that a fact will be proved if the panel is satisfied that it is more likely than not that it occurred as alleged. 5
Charges: The panel considered charges (1)(a) and (1)(b) and made the following findings: (1) On 5 March 2014 accepted a police caution from Thames Valley Police for: a) Possession of a controlled drug Class B cannabis / cannabis resin on 10 January 2014 contrary to section 5(2) of the Misuse of Drugs Act 1971. This charge is found proved. b) Possession of a controlled drug Class C on 10 January 2014 contrary to section 5(2) of the Misuse of Drugs Act 1971. This charge is found proved. The panel had sight of the details of the police caution dated 5 March 2014 certifying Miss Cross acceptance of a police caution from Thames Valley Police for the possession of controlled drug Class B cannabis on 10 January 2014 and the possession of a controlled drug Class C on 10 January 2014. Having had regard to the documentary evidence before it, the panel found charges (1)(a) and (1)(b) proved in light of the evidence provided of the police caution. 6
The panel next considered charge (2). (2) On 27 July 2015 were convicted at the Crown Court sitting at Aylesbury of possessing a controlled drug with intent to supply Class B other on 27 November 2014, contrary to 5(3) of the Misuse of Drugs Act 1971. This charge is found proved. The panel had sight of the Certificate of Conviction from Aylesbury Crown Court dated 28 April 2016 certifying Miss Cross conviction of possessing a controlled drug with intent to supply Class B. The Certificate of Conviction also confirms that on 15 April 2016 Miss Cross was sentenced to 8 months imprisonment suspended for 24 months. Rule 31(2)(a) of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 provides that a certified copy of the Certificate of Conviction shall be conclusive proof of the conviction. For this reason the panel find this charge proved. 7
The panel then considered charge (3). (3) On 9 March 2016 were convicted at the Crown Court sitting at Aylesbury of possess with intent to supply of a controlled drug Class C other on 27 November 2014 contrary to 5(3) of the Misuse of Drugs Act 1971. This charge is found proved. The panel had sight of the Certificate of Conviction from Aylesbury Crown Court dated 28 April 2016 certifying Miss Cross conviction of possession with intent to supply of a controlled drug Class C. The Certificate of Conviction also confirms that on 15 April 2016 Miss Cross was sentenced to 16 months imprisonment suspended for 24 months. Rule 31(2)(a) of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 provides that a certified copy of the Certificate of Conviction shall be conclusive proof of the conviction. For this reason the panel find this charge proved. 8
Determination on Impairment of Fitness to Practise: The panel has considered, on the basis of the matters found proved, whether Miss Cross fitness to practise is currently impaired by reason of her caution and convictions. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. The panel has taken into account all of the documentary evidence before it and has heard and accepted the advice of the legal assessor. The panel had regard to the terms of The Code, Professional standards of practice and behaviour for nurses and midwives 2015 and The code: Standards of conduct, performance and ethics for nurses and midwives 2008. The 2008 Code expressly states that one must, always act lawfully, whether those laws relate to your professional practice or personal life. By acting as she did, the panel considers that Miss Cross was clearly in breach of the following provisions of both the 2008 and 2015 Code: Preamble - 2008 Code: The people in your care must be able to trust you with their health and wellbeing. To justify that trust you must: Be open and honest, act with integrity and uphold the reputation of the profession. 2008 Code: 49 You must adhere to the laws of the country in which you are practising. 9
61 You must uphold the reputation of your profession at all times. 2015 Code: 20 Uphold the reputation of your profession at all times 20.4 keep to the laws of the country in which you are practising The panel considers that the facts on which both the caution and convictions were based involve serious breaches of both the 2008 and 2015 Code. The panel took account of the guidance in the case of CHRE v NMC and Grant [2011] EWHC 927 (Admin), in particular the formulation advanced by Dame Janet Smith in her Fifth Shipman Report: Do our findings of fact in respect of the [nurse s] misconduct, deficient performance, adverse health, conviction, caution or determination show that his/her fitness to practise is currently 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 [nursing] profession into disrepute; and/or (c) has in the past brought and/or is liable in the future to breach one of the fundamental tenets of the [nursing] profession; and/or (d) [not relevant in this case] In the Crown Court Miss Cross was convicted of the possession and intent to supply of controlled drugs. The panel had regard to the sentencing remarks in which the Judge stated: The sentencing guidelines council quite rightly sets down that these sorts of offences, the offences of which you have been convicted by your own pleas should attract lengthy prison 10
sentences... You can see why it is that the message must go out that dealing in drugs cannot be tolerated. I think you... deserve to go to prison immediately The judge passed suspended sentences of imprisonment. The panel was of the view that Miss Cross actions have damaged public confidence in the nursing profession. Such behaviour is unacceptable. The panel considered that the caution and convictions brought the reputation of the profession into disrepute. So far as the panel is aware, there are no matters relating to Miss Cross clinical competence that have come before the NMC. However, the panel has not seen any information, written or otherwise from Miss Cross to indicate that she has apologised for her actions or that she acknowledges the seriousness of her conduct, nor was there any evidence that she has remediated her behaviour. As such, the panel concluded that Miss Cross has demonstrated no insight into her actions. The panel was satisfied, in the absence of any evidence of remediation, there remains a real risk of repetition of the behaviour that forms the basis of Miss Cross caution and convictions. If repeated the reputation of the profession would be further damaged. Throughout its deliberations the panel bore in mind its responsibility to uphold the public interest. The public interest includes not only the protection of patients but also the maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour. Taking into account the paramount need to protect the public and the wider public interest, the panel concluded that the nature of the caution and convictions are so serious that the public interest calls for a finding of impairment to maintain trust and confidence in the profession and regulatory system. It therefore finds Miss Cross fitness to practise to be impaired by reason of her caution and convictions. 11
Decision on sanction and reasons: Having determined that Miss Cross fitness to practise is impaired, the panel considered what sanction, if any, it should impose. In reaching its decision the panel has had regard to all the documentary evidence that has been adduced in this case. In making its decision, the panel heard and accepted the advice of the legal assessor. The panel exercised its own independent judgement on this issue and has borne in mind the NMC s Indicative Sanctions Guidance as amended, September 2016 ( ISG ). It took into consideration that any sanction imposed must protect the public and has applied the principle of proportionality. The panel has had regard to the public interest and Miss Cross own interest. The public interest includes the protection of members of the public, the maintenance of public confidence in the profession and the NMC as a regulatory body, and the declaring and upholding of proper standards of conduct and performance. Under Article 29 of the Nursing and Midwifery Council Order 2001, the panel can take the following actions in ascending order: no further action; a caution order for between one to five years; a conditions of practice order for no more than three years; a suspension order for a maximum of one year; or a striking off order. The panel has borne in mind that any sanction imposed must be reasonable, appropriate and proportionate, and although not intended to be punitive it may be so in its effect. The panel is mindful that a sanction must demonstrate a considered and proportionate balance between the interests of the public and Miss Cross. The panel had no information from Miss Cross as to how any sanction may impact on her financial or professional standing. The panel considered, in ascending order, which sanction to impose starting with the least restrictive. 12
The panel considered that the circumstances of this case do not justify taking no action, given the serious nature of Miss Cross caution and convictions. Further, the panel considered that to take no further action in this case would be insufficient to maintain public confidence in the nursing profession, and in the NMC as its regulator. The panel went on to consider whether a caution order would be appropriate. The panel has taken account of the ISG as it relates to caution orders. Miss Cross actions were not at the lower end of the spectrum and, in the panel s view, a caution order would not be sufficient or appropriate in this case as the panel is not satisfied that a caution order would mark the seriousness of the caution and convictions, nor would it sufficiently take into account the public interest. As such a caution order is not an appropriate or proportionate sanction to impose in this case. The panel next considered whether it would be sufficient to impose conditions on Miss Cross registration. A conditions of practice order is normally appropriate in cases where there are identifiable areas of nursing practice that require assessment and/or retraining. This does not apply in this case. A conditions of practice order would not be adequate to protect the public or maintain public confidence in the profession. The charges found proved related to the possession and intent to supply both class B and class C drugs, and not to any aspect of Miss Cross clinical practice. In all the circumstances the panel concluded that appropriate conditions could not be formulated to address these concerns and were in any event inappropriate due to the seriousness of the caution and convictions. The panel next considered the imposition of a suspension order and had regard to paragraphs 66-70 of the ISG. The panel has already indicated that the behaviour which led to Miss Cross caution and convictions were serious. By her behaviour, Miss Cross brought the reputation of the profession into disrepute and breached a fundamental tenet of the profession. The panel noted that a suspension order may be appropriate when a panel is satisfied that a registrant has shown insight and does not pose a significant risk of repeating the behaviour. However, the panel has not been provided with any evidence from Miss Cross to adequately explain her actions and the impact those actions had on others. 13
The panel considered that temporary removal from the register by way of a suspension order would not adequately maintain public confidence in the profession and the NMC as a regulatory body, nor would it satisfy the need for the NMC to declare and uphold proper standards of conduct and performance within the profession. It concluded that Miss Cross behaviour which led to the caution and convictions were incompatible with her ongoing registration. Further, in light of the serious nature of the caution and convictions in this case, it concluded that public interest in this case cannot be satisfied by any lesser outcome than permanent removal from the Register. The panel is of course mindful of the impact that such a serious sanction may have on Miss Cross in terms of financial, personal and professional hardship. Nevertheless, the panel considers that in this case, the public interest outweighs her own interests. The panel has therefore determined that a striking-off order is the only appropriate and proportionate sanction in this case. The panel has therefore determined to impose a striking off order and directs the Registrar to strike Vicky Cross name off the register. Miss Cross will be informed of this decision in writing and will have 28 days from the date when written notice of the result of this hearing is deemed to have been served upon her in which to exercise her right of appeal. Unless Miss Cross exercises her right of appeal, the direction imposing the striking off order will take effect 28 days from when written notice of the decision is served upon her. 14
Decision on Interim Order and reasons: Pursuant to Article 29 (11) of the Nursing and Midwifery Order 2001, this panel s decision will not come into effect until after the 28 day appeal period, which commences from the date that notice of the suspension order has been served. Article 31 of the Nursing and Midwifery Order 2001 outlines the criteria for the imposition of an interim order. The panel may only make an interim order if it is satisfied on one or more of three grounds; that it is necessary for the protection of the public, otherwise in the public interest or in Miss Cross own interests. The panel may make an interim order for a maximum of 18 months. The panel heard and accepted the advice of the legal assessor. It has also had regard to the NMC s guidance to panels in considering whether to make an interim order. The panel has taken into account the principle of proportionality, bearing in mind the balance it must strike between the interests of the public and those of Miss Cross. The panel has decided to impose an interim suspension order in this case. The panel is satisfied that such an order is necessary on the grounds of patient protection and is otherwise in the public interest. The panel had regard to the seriousness of the facts found proved and the reasons set out in its decision for the substantive order in reaching the decision to impose an interim suspension order. To do otherwise would be incompatible with its earlier findings. In the circumstances the panel considered that an interim suspension order for a period of 18 months would be appropriate. If no appeal is lodged then the interim suspension order will be replaced by the substantive striking off order 28 days after Miss Cross is sent the decision of this hearing in writing. This will be confirmed to Miss Cross in writing. That concludes this determination. 15