New Interim Order Hearing. 24 May Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE

Transcription

1 New Interim Order Hearing 24 May 2013 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of registrant: NMC Pin: Mr Sindani Mkhweli 00C1059E Part(s) of the register: Registered Nurse- Sub Part 1 Mental Health- 13/03/2003 Area of registered address: Panel members: Legal Assessor: Panel Secretary: Nursing and Midwifery Council: Mr Mkhweli: England Phillip Jewell (Chair, lay member) Laura Morton (Registrant member) Yana Richens (Registrant member) Nicholas Wilcox Andrew Brown Represented by Matthew Kewley, instructed by NMC Regulatory Legal Team Neither present nor represented Interim Order Directed: Interim Suspension Order, 18 months Dec 2012 Page 1 of 6

2 Service of Notice of Hearing The panel was informed at the start of this hearing that Mr Mkhweli was not in attendance. The panel was informed that notice of this hearing was sent to Mr Mkhweli on the 15 May 2013 by recorded delivery to his address on the register. In the light of the information available, the panel was determined that the notice period was reasonable in all the circumstances of this case and was therefore satisfied that notice had been served in compliance and accordance with Rules 8 and 34 of The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended February 2012) (the Rules). Proceeding in the absence The panel then considered continuing in the absence of Mr Mkhweli. The panel heard the submissions made by Mr Kewley on behalf of the Nursing and Midwifery Council (NMC) and took account of the legal assessor s advice. The panel was mindful that proceeding in the absence of a registrant was a discretion that must be handled with the utmost care and caution. The panel noted the telephone note of a call made by Mr Mkhweli to the NMC on 23 May 2013, in which Mr Mkhewli stated that he had contacted UNISON upon receiving notification of today s hearing, but that they had said that they were unable to represent him, given the short notice they had of the hearing. Mr Mkhweli said that he had no money, and was not receiving benefits, so would not be able to attend the hearing. He said that he was still on his employer s payroll and was due to be paid at the end of the month. The NMC s Case Officer told Mr Mkhweli that if he could not attend the hearing, he was entitled to send written submissions, and advised him that he should do this urgently, via . Mr Mkhweli provided the NMC with written representations via on 23 May Dec 2012 Page 2 of 6

3 Mr Kewley invited the panel to proceed in Mr Mkhweli s absence today. He drew the panel s attention to Mr Mkhweli s written submissions to the panel. He invited the panel to conclude that Mr Mkhweli had voluntarily absented himself from today s hearing. Mr Kewley reminded the panel of the public interest in the expeditious disposal of NMC matters, and of the emergency nature of this panel. Mr Mkhweli had been sent notice of today s hearing and the panel was therefore satisfied that he was aware of today s hearing and it is of the view that he has chosen voluntarily to absent himself. Mr Mkhweli has made no request for an adjournment of today s hearing. The panel noted that Mr Mkhweli had provided written submissions. The panel also had regard to the serious nature of the allegations in this case. Having weighed the interests of Mr Mkhweli with those of the NMC and the public interest in an expeditious disposal of this hearing the panel has determined that it is fair to proceed in Mr Mkhweli s absence today. The panel would remind Mr Mkhweli that he has the opportunity to call for an early review of any Interim order the panel may impose today. Decision on Interim Order The panel considered this case carefully and decided to make an interim suspension order. The period of this order is for 18 months to allow the NMC to conduct a full and proper investigation. The panel considered the documentation before it. It heard submissions by Mr Kewley on behalf of the NMC and the written submissions from Mr Mkhweli. The panel accepted the advice of the legal assessor and took account of the guidance issued to panels by the NMC when considering interim orders and the appropriate test as set out in Article 31 of The Nursing and Midwifery Order It may only make an interim order if it is satisfied that it is necessary for the protection of the public, is otherwise in the public interest or in Mr Mkhweli s own interest. The panel was mindful that its role was to undertake a risk assessment based on the information before it, and not to determine the facts of the case. The allegations in this case concern Mr Mkhweli having being sentenced to ten weeks imprisonment on 5 April 2013 following an arrest for drink driving and driving without Dec 2012 Page 3 of 6

4 insurance. Mr Mkhweli did not inform his employer of the proceedings. His employers only learnt of Mr Mkhweli s conviction when he failed to turn up for duty and they made enquiries. This is Mr Mkhweli s fourth drink driving offence in ten years, and he has now been banned from driving for three years. Mr Kewley submitted, on behalf of the NMC, that an interim order is necessary on the grounds of public protection as well as it being in the public interest and in Mr Mkhweli s own interests. Mr Kewley submitted that this should be an Interim Suspension Order for the maximum period of 18 months. He submitted that the allegations against Mr Mkhweli were serious. He drew the panel s attention to the copy of Mr Kewley s Police National Computer record, detailing a number of incidents involving alcohol and road traffic offences. Mr Kewley reminded the panel that the issue of public protection concerned not just the protection of patients, but the public more generally. He submitted that Mr Mkhweli s alleged actions indicated an inability to make reasoned judgments. He reminded the panel that Mr Mkhweli had received a number of convictions for drink driving and driving whilst disqualified, suggesting an attitudinal problem towards the authority of the court. Mr Kewley submitted that Mr Mkhweli s alleged conduct had significantly departed from the standards of behaviour which the public had a right to expect from a Registered Nurse. He reminded the panel that Mr Mkhweli had failed to inform his employer of his arrest or conviction. Mr Kewley drew the panel s attention to the written submissions of Mr Mkhweli in which he states that I always thought I have an alcohol problem and have constantly thought I should be able to get over it. I have sort (sic) help (been assessed) in the past but because I don t experience physical problems I have never been offered treatment following assessment. Mr Kewley submitted that an Interim Suspension Order would afford Mr Mkhweli an opportunity to address his issues with alcohol as well as giving the NMC sufficient time to investigate the allegations. Mr Kewley submitted that, given the nature of the allegations in this case, an Interim Conditions of Practice Order would not be appropriate in this case. Dec 2012 Page 4 of 6

5 In his written submissions, Mr Mkhweli said that he believed he had a problem with alcohol and that he recognised the effect that these matters had had on his family. He said he was proud to be a nurse and apologised for his conduct. The panel is of the view that based on the information before it there would be a real risk to the public if an interim order were not imposed on Mr Mkwheli s registration. Mr Mkhweli has shown little insight into the potentially very serious consequences of his drink drive offences, and the panel is therefore of the view that without an interim order, there would be a real risk of Mr Mkhweli repeating this behaviour. The panel notes that the preamble to the NMC s code of conduct states: You must always act lawfully, whether those laws relate to your personal or professional life. The Code further states that you must be open and honest, act with integrity and uphold the reputation of your profession. The allegations in this case are of a serious nature. The drink driving offences had been repeated four times over a period of ten years. The panel further noted that Mr Mkhweli had been convicted of drink driving in the past whilst banned from driving for the same offence. The panel therefore concluded that some form of interim order was necessary on the grounds of public protection. An order is also otherwise in the public interest, in order to maintain confidence in the nursing profession and the NMC as its regulator, given the serious and repeated nature of Mr Mkhweli s criminal convictions. The panel noted that Mr Mkhweli had not informed his employer of his arrest or conviction. The panel concluded that the public interest in the nursing profession and the NMC would be undermined were an interim order not to be imposed in this case. The panel also concluded that an Interim Order was in Mr Mikhweli s own interests in both a personal and professional capacity, given his acceptance that he has a problem with alcohol. The panel first considered an interim conditions of practice order but determined that, in all the circumstances, that such an order would be insufficient to protect the public and to meet the wider public interest considerations of this case. The panel was of the view that appropriate conditions of practice could not be devised in this case. The panel is satisfied that, in the particular circumstances of this case, an interim suspension order is appropriate, necessary and proportionate. It concluded that this Dec 2012 Page 5 of 6

6 order should be for the maximum period of 18 months to allow the NMC to conduct a full investigation into this case. The panel has noted that this order will prevent Mr Mkhweli from working as a registered nurse and, as a consequence, Mr Mkhweli may be caused financial hardship. However, in applying the principle of proportionality, the panel determined that the need to protect the public and the wider public interest outweighed Mr Mkhweli s own interests in this regard. Unless Mr Mkhweli s case has already been concluded or there has been a material change of circumstances, a panel will review the interim suspension order at a review meeting within the next six months and every three months after that. The panel will be invited by the NMC to confirm the order at this meeting and Mr Mkhweli will be notified of the panel s decision in writing following that meeting. Where there has been a material change of circumstances that might mean that the order should be revoked or replaced, or there has been a request for an early review, the panel will review the order at a hearing to which Mr Mkhweli will be invited to attend in person, send a representative on his behalf or submit written representations for the panel to consider. At any such review hearing the panel may revoke the order, it may confirm the order or it may replace it with an interim conditions of practice order. The panel again reminds Mr Mkwhele that he has the opportunity to call for an early review of this interim order. This decision will be confirmed to Mr Mkhweli in writing. A panel of the Investigating Committee has still to deal with the allegation that has been made against Mr Mkhweli. The NMC will keep him informed of developments in relation to that issue. That concludes this determination. Dec 2012 Page 6 of 6