Conduct and Competence Committee Substantive Hearing 22 July 2016 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of Registrant Nurse: NMC PIN: Nomathemba Amanda Primrose Socikwa 10G0506E Part(s) of the register: Registered Nurse Sub Part 1 Mental Health October 2010 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: England Conviction Stephen Barker (Chair Lay member) Carol Carrington (Lay member) Paul Theed (Registrant member) Iain Burnett Zara Raza Representation: Mrs Socikwa Nursing and Midwifery Council: Facts proved: Facts not proved: Fitness to practise: Sanction: Interim Order: Present and not represented Represented by Bernadette Smith, Case Presenter, instructed by the NMC Regulatory Legal Team ALL n/a Impaired Striking-Off Order Interim Suspension Order - 18 months 1
Decision and reasons on application to amend charge: The panel heard an application made by Ms Smith, on behalf of the NMC, to amend the reference to the Proceeds of Crime Act 2002 in charges 1 and 2. Ms Smith said the year of the Proceeds of Crime Act should rightly read 2002 and not 2003. You did not oppose this application. The panel accepted the advice of the legal assessor that Rule 28 of the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended) ( the Rules ) states: 28. (1) At any stage before making its findings of fact (i) the Conduct and Competence Committee, may amend (a) the charge set out in the notice of hearing unless, having regard to the merits of the case and the fairness of the proceedings, the required amendment cannot be made without injustice. The panel was satisfied that there would be no prejudice to you and no injustice would be caused to either party by allowing the proposed amendment. The panel considered it appropriate to allow the amendment, as applied for, to ensure accuracy. Charges as amended: That you, a registered nurse, 1. On 18 December 2015 at the Crown Court sitting at Birmingham were convicted of; 1.1. Facilitate the acquisition of / acquire / possess criminal property between 28/05/2013 04/07/2013 contrary to the Proceeds of Crime Act 2002 s. 329 and s.334 2
1.2. Facilitate the acquisition of / acquire / possess criminal property between 01/07/2013 28/10/2013 contrary to the Proceeds of Crime Act 2002 s. 329 and s.334 And in light of the above convictions your fitness to practise is impaired. Background The NMC received a referral regarding your fitness to practise on 1 October 2015. At the relevant time, you were working as a Band 5 Adult Mental Health Nurse. It was alleged that you had been convicted of two criminal offences, for which you were also dismissed from your employment. During the criminal proceedings in relation to this matter, it was alleged that you had allowed your personal bank accounts to be used by a friend, who you say you had known for two months, to deposit money illegally obtained from a vulnerable person with mental health problems. (For the purposes of these proceedings, he is referred to as Patient A.) The money was obtained as part of a financial scam whereby Patient A was contacted and asked to make donations to a charitable organisation. Patient A, who was not a patient under your care and not an individual you knew of personally, had his money deposited into your bank accounts. The monies deposited in your accounts totalled 69,200. You were convicted on 18 December 2015 at Birmingham Crown Court of two offences of; 1) Facilitating the acquisition of / acquiring / possessing criminal property between 28/05/2013 04/07/2013. 2) Facilitating the acquisition of / acquiring / possessing criminal property between 01/07/2013 28/10/2013. 3
At the time of sentencing, it was considered by the Judge that you were suspicious you said, and I will accept that you did not benefit financially over and above the monies which were spent on you by [your friend]..the length of the criminal activity on the part of both of you is significant you did not know the extent of the fraud, which was perpetrated on [Patient A], if indeed you knew about it at all. You received a 19 month prison sentence which was suspended for two years in addition to being sentenced to carry out unpaid work. Decision on the findings on facts and reasons: The panel had before it a certificate of conviction stating that you were convicted on 18 December 2015 at Birmingham Crown Court of two offences of; 1) Facilitating the acquisition of / acquiring / possessing criminal property between 28/05/2013 04/07/2013. 2) Facilitating the acquisition of / acquiring / possessing criminal property between 01/07/2013 28/10/2013. You received a 19 month custodial sentence suspended wholly for 24 months in addition to being sentenced to carry out 250 hours of supervised unpaid work before 18 December 2016. Having examined the documentation, the panel was satisfied that you were the person identified in the certificate of conviction and that the certificate of conviction provides conclusive proof of your convictions. The panel finds that the facts are found proved in accordance with Rule 31(2) of the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended) ( the Rules ) which states; 31 - (2) Where a registrant has been convicted of a criminal offence 4
(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 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. Accordingly, the panel found the convictions proved by way of your admissions, made at the outset of this hearing, and the certificate of conviction. Decision on impairment: On the basis of the matters admitted and found proved, the panel next considered whether your fitness to practise is currently impaired by reason of your convictions. The NMC defines fitness to practise as a registrant s suitability to remain on the register without restriction. In reaching its decision, the panel took into account Ms Smith s submissions on behalf of the NMC, as well as your submissions. You also gave evidence on oath at this stage. Ms Smith submitted that your fitness to practise is currently impaired. She submitted that the convictions raise serious issues with regard to your integrity and in particular your judgement. She submitted that, whilst you have given evidence with regards to the basis upon which you entered your guilty plea and how far it is accepted that you held any suspicion with regards to the monies in your accounts, the documentation before the panel is clear as to your convictions and sentencing. She referred the panel to the case of CHRE v (1) GDC and (2) Fleischmann [2005] EWHC 87 (Admin). She submitted that given that you were convicted of the offences and are currently serving a suspended sentence, this was sufficient in and of itself to establish current impairment. You told the panel that you have had no criminal convictions or NMC referrals in the past. You said that you are currently subject to a NMC interim conditions of 5
practice order and that this has made it difficult for you to obtain nursing employment. You said that you are currently carrying out unpaid work at a charity shop and that you had requested a reference from its manager but that one has not yet been provided to you. You said that you did not know of Patient A or that he had deposited monies in your bank accounts but accept that this must have been a distressful matter for him and his family. It remains your case that you were not aware, nor did you suspect, that your bank accounts were being used to deposit money illegally. You said that in future you would not be so naïve and would be more aware of the people around you. You said that you had failed to inform the police about the amount of money being deposited in your bank accounts after you had been notified by the bank of suspected fraudulent activity. You said that in future you would report anything similar to this situation straightaway. You said that you have found yourself in a difficult situation that has impacted your family and personal life. You said that you are a very good nurse and would like to be given the opportunity to continue nursing. You also provided the panel with a reflective piece and a testimonial from a previous colleague dated 18 September 2015 (which was also provided at Birmingham Crown Court at the time of your criminal proceedings). The panel also had before it and took account of a letter dated 2 March 2016 from solicitors on your behalf, outlining your current personal situation and commitment to the nursing profession. The panel heard and accepted the advice of the legal assessor. In particular he referred the panel to the case of CHRE v NMC and Grant [2011] EWHC 97 and the guidance provided by Mrs Justice Cox. The legal assessor also advised the panel with regards to the relevant mental element in respect of your criminal offences. Under the Proceeds of Crime Act 2002, the requisite mental element is to have a, suspicion, that property in your possession is a person s benefit from crime. He advised that your convictions are therefore not classed as dishonesty 6
offences. Similarly, in the context of these regulatory proceedings, he advised that this is therefore not a dishonesty case. The panel has exercised its own independent judgement in determining whether your fitness to practise is currently impaired by reason of your convictions. It has kept in mind the need to protect the public, to maintain public confidence in the nursing profession, and to uphold proper standards of conduct and behaviour. At the outset of this hearing, you admitted that your fitness to practise is impaired. However, the panel was mindful that the issue of impairment remains one for the judgement of the panel itself. Having regard to all the circumstances, the panel concluded that your conduct fell far below the standards expected of a registered nurse and that, through your convictions, you had breached the preamble and a number of the fundamental standards of nursing practice as set out in the provisions of the NMC code: Standards of conduct, performance and ethics 2008 ( the Code ). Namely; Preamble: 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 act with integrity and uphold the reputation of your profession. Paragraphs: 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. 7
In assessing the issue of current impairment, the panel considered, amongst other factors, the guidance given in Grant provided by Dame Janet Smith in the Fifth Shipman Report in which it stated: 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 and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm 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 d. has in the past acted dishonestly and/or is liable to act dishonestly in the future." To that end, the panel first considered whether you had acted so as to put patients at unwarranted risk of harm, had brought the nursing profession into disrepute, had breached one of the fundamental tenets of the nursing profession, and/or had in the past acted dishonestly. The panel acknowledged that no concerns have been raised as to your clinical skills and no issue arises as to patient safety. However, the panel was satisfied that your criminal behaviour has brought the profession into disrepute and breached fundamental tenets of the profession, namely, to act with integrity and uphold the reputation of your profession. The panel accepted the legal assessor s advice that this is not a dishonesty case, in light of the mental element required for such offences. In considering whether you would be liable in the future to bring the profession into disrepute, and/or to breach one of the fundamental tenets of the profession, the panel had careful regard to the issues of your insight and remediation. Whilst the panel noted that you had shown some degree of insight by pleading guilty and making admissions at these proceedings, it considered your insight to be very 8
limited. In this regard, the panel particularly noted that you stated that you had entered a guilty plea as this is what you were advised to do by legal representation. Further, your reflective piece, whilst acknowledging some insight into the impact of these events on Patient A, does not reflect on the wider impact on the nursing profession. Whilst the panel considered that failings of this kind are difficult to remedy, it noted that there appeared to be no sufficient evidence from you of any steps you had undertaken to remedy your failings. The panel considered that there was an absence of sufficient insight and remediation on your part. For these reasons, the panel determined that it could not rule out the risk of repetition. It determined that you were therefore liable in the future to bring the profession into disrepute and to breach a fundamental tenet of the profession. Furthermore, the panel was in no doubt that the need to uphold proper professional standards and public confidence in the profession and the regulatory process would be undermined if a finding of impairment was not made in the particular circumstances of this case. For all of these reasons, the panel concluded that your fitness to practise is currently impaired by reason of your convictions. Determination on Sanction: The panel has decided to impose a striking off order. Having determined that your fitness to practise is currently impaired, the panel considered what sanction, if any, it should impose in relation to your registration. In reaching its decision on sanction, the panel considered the submissions made by Ms Smith, on behalf of the NMC, and your submissions. It also considered all of the evidence that had been adduced during these proceedings. 9
The panel heard and accepted the advice of the legal assessor. Ms Smith referred the panel to the relevant paragraphs of the NMC s Indicative Sanctions Guidance ( ISG ). She reminded the panel that you are still currently serving your suspended sentence imposed by Birmingham Crown Court. She also submitted that in the panel s findings, you have shown limited insight into the seriousness of your actions. She submitted that, in light of the case of Fleischmann, the minimum sanction relevant in this case is a suspension order. You submitted that you were not aware of your and your mother s bank accounts being used for illegal purposes. You said that you were not aware of Patient A, or his particular vulnerability due to his mental health. You stated that you should have reported these events to your employer earlier. You said that you have apologised for your actions and would never do anything like this again as it has caused a lot of distress in your own life. You also outlined your personal and financial circumstances to this panel. In reaching its decision, the panel took account of the ISG and the need to protect the public as well as the wider public interest. This includes maintaining public confidence in the profession and the NMC as the regulator, and declaring and upholding proper standards of conduct and behaviour. The panel has applied the principle of proportionality, weighing the interests of the public with your interests, and has taken into account the mitigating and aggravating factors in this case. The panel has borne in mind that the purpose of a sanction is not to be punitive, although it may have that effect. The panel has exercised its own independent judgement on this issue and has accepted the advice of the legal assessor which was that in determining an appropriate sanction, the panel should take a proportionate approach, starting with the least restrictive sanction when considering the appropriate sanction to apply. The panel carefully considered the aggravating and mitigating factors in this case. 10
The aggravating factors which the panel found to be present are: Your actions were a serious departure from the standards expected of a registered nurse. You demonstrated poor judgement in allowing others to access your and your mother s bank accounts. You failed to query the manner in which the bank accounts were being used despite a substantial sum of 69,200 being deposited and you having been alerted to suspected fraudulent activity. You reported the illegal activity, only after concerns had been raised about the suspected fraudulent use of three separate bank accounts. You initially denied the allegations during police interview. You also entered a guilty plea at a late stage during your criminal proceedings. The length of the fraudulent activity was described as significant during the criminal proceedings in the Judge s sentencing remarks. You are currently serving your two year suspended sentence. You have demonstrated very limited insight into your actions and the panel considered your evidence to have centred around the impact of these events on your own personal and professional life. The mitigating factors which the panel found to be present are: You provided the panel with a testimonial from a prior colleague. However, this colleague has not worked with you in a professional capacity for some time. You entered a guilty plea, albeit, at a late stage in your criminal proceedings. You have apologised for your actions at the time of your criminal proceedings and before this panel. You have demonstrated some insight, albeit, very limited. A letter from your solicitors dated 2 March 2016 outlined your commitment to the nursing profession and your personal and financial difficulties. The panel then went on to consider what, if any, sanction was appropriate in this 11
case. The panel first considered taking no action. The convictions in this case demand that a sanction be imposed to mark the serious departure from the professional standards set out in the Code and satisfy the wider public interest. Accordingly, the panel has concluded that the facts in this case are far too serious for it to take no action. The panel next considered whether a caution order would be appropriate. It took into account paragraphs 63 to 65 of the ISG. The panel considered that the facts found proved in this case were not at the lower end of the spectrum of impaired fitness to practise. In all the circumstances, the panel concluded that a caution order would not be sufficient to uphold and maintain public trust and confidence in the nursing profession. It also determined that confidence in its regulator would be seriously undermined if such an order was made. The panel next considered the imposition of a conditions of practice order. It noted the factors set out in paragraphs 66 to 68 of the ISG which indicate when such an order may be appropriate, in particular where there are identifiable areas of nursing practice that require assessment and/or retraining. The panel was mindful that your nursing practice and competence have not been called into question. It therefore determined that no conditions of practice could be formulated to address the serious findings in this case. Most significantly, given the serious nature of your conduct, the panel was of the view that a conditions of practice order would not be an appropriate or proportionate response to declare and uphold proper professional standards, and to maintain public confidence in the profession and the regulatory process. The panel then went on to consider the sanction of suspension. It had careful regard to the ISG and the factors identified particularly in paragraphs 69-73 of the ISG. The panel noted that this was not an isolated incident but repeated incidents. In the sentencing remarks during your criminal proceedings the length of the fraudulent activity was described as significant. The fraudulent activity related to 12
substantial amounts of money. The panel was not convinced by your assertions that you would not repeat such actions in the future. The panel determined that your failure to, at a minimum, query the use of your bank accounts when alerted to the substantial amounts of money that were being deposited, to be indicative of the presence of deep-seated attitudinal issues. The panel considered that you had not provided any sufficient evidence of remediation or any meaningful insight into your behaviour. Furthermore, the panel was mindful of its decision on impairment that it could not rule out a risk of repetition in this case. The panel has balanced and evaluated the mitigating factors it has set out but considers these are insufficient to outweigh the public interest. Accordingly, the panel did not consider that a suspension order was an appropriate sanction in this case. Therefore, having regard to the nature and seriousness of the convictions in this case, and the context of the conduct to which it relates, the panel concluded that a striking-off order is the only appropriate and proportionate sanction. It noted the ISG and the factors identified particularly in paragraphs 74-77 of the ISG. The panel determined that a striking off order is necessary to protect the public interest. The panel concluded that the seriousness of your behaviour was fundamentally incompatible with your ongoing registration. The panel was mindful of the potential impact that such an order would have on you in terms of financial, personal and professional hardship. However, taking full account of the important principle of proportionality, the panel was of the view that the interests of the public outweigh your interests in this regard. The panel concluded that your actions represented such a fundamental departure from the relevant standards that public confidence in the nursing profession and in the NMC as its regulator would be undermined were the panel not to impose a striking-off order. The panel, therefore, directs the Registrar to strike your name from the Register. You may not apply for restoration until five years after the date that this decision takes effect. 13
Determination on an interim order: The panel has considered all the information before it including the submissions made by Ms Smith, on behalf of the NMC. The panel heard and accepted the advice of the legal assessor, who referred the panel to its powers under Article 31 of the Nursing and Midwifery Order 2001 and to the NMC s published guidance to panels considering whether to make an interim order. Article 31 of the Nursing and Midwifery Order 2001 outlines the criteria for imposing an interim order. The panel may only make an interim order if it is satisfied that it is necessary for the protection of the public; that it is otherwise in the public interest; and/or that it is in a registrant s own interest. Ms Smith submitted that an interim order was necessary on the grounds that it is in the public interest. She reminded the panel that you are currently under an interim conditions of practice order. She submitted that given the panel s determination on impairment and sanction, this should be replaced with an interim suspension order. The panel had regard to the circumstances of the case and the reasons set out in the decision for the striking-off order. The panel also took into account that you are currently serving your suspended prison sentence. The panel considered that an interim order is necessary in this case to satisfy the wider public interest. Not to make an interim order would be incompatible with the panel s earlier findings. For all the reasons set out in the panel s determination thus far, the panel has decided that an interim conditions of practice order is not appropriate. In all the circumstances of this case, the panel determined that an interim suspension order is necessary to satisfy the wider the public interest. To do otherwise, would undermine its earlier findings in relation to impairment and sanction. 14
The panel considered that the order should run for a period of 18 months in order to allow for any appeal process, and that such an order is both appropriate and proportionate following its decision on sanction to impose a striking-off order. If at the end of the appeal period of 28 days, you have not lodged an appeal, the interim order will lapse and be replaced by the substantive order. On the other hand, if you do lodge an appeal, the interim order will continue to run until the conclusion of the appeal. This determination will be confirmed to you in writing. That concludes this hearing. 15