Conduct and Competence Committee. Substantive Hearing. 25 November Nursing and Midwifery Council, 85 Tottenham Court Road, London, W1T 4TQ

Transcription

1 Conduct and Competence Committee Substantive Hearing 25 November 2011 Nursing and Midwifery Council, 85 Tottenham Court Road, London, W1T 4TQ Name of Registrant Nurse: NMC PIN: Part(s) of the register: Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Council s officer: Khalil Olamuyiwa 95H0117E Registered Nurse Adult Bedfordshire Conviction Mr Peter Catchpole (lay member/chair) Mrs Cheri Channon (lay member) Ms Hildah Jiah (registered nurse adult) Mr Ian Ashford-Thom Miss Veronique Benett Representation: NURSING AND MIDWIFERY COUNCIL: Represented by Ms Elizabeth Wheeler Nursing and Midwifery Council Regulatory Legal Team Nurse: Mr Olamuyiwa did not attend and was not represented in his absence Facts proved: 1, 2 Facts not proved: n/a Fitness to practise: Impaired Sanction: Striking Off order Interim order: Interim Suspension order 18m months Charges read: 1. That you on 18 February 2004 were convicted at Hendon Magistrates Court of drink driving and were sentenced to a 12 month disqualification order, a 250 fine and ordered to pay 50 prosecution costs. Proved 2. That you on 13 January 2010 were convicted at Blackfriars Crown Court of an offence of Voyeurism and on 17 May 2010 were sentenced to a Community Sentence for 36 months, must participate in sex offenders treatment, to sign Page 1 of 8

2 the sex offenders register for a period of 5 years and to pay prosecution costs. Proved And in light of the above, your fitness to practise is impaired by reason of your conviction. Determination on proceeding in Mr Olamuyiwa s absence The panel has heard that the notice of today s hearing dated 30 September 2011 was sent to Mr Olamuyiwa s representatives at Blavo & Co Solicitors and also to his registered address. The notice contains the correct date, time and venue of the hearing as required by rule 11 of the Nursing and Midwifery Council (Fitness to Practise) Rules The notice was sent by first class post and recorded delivery as required by rule 34 of those rules. The panel has seen evidence of the delivery of both notices in the form of print outs of the Royal Mail s track and trace recorded delivery service. It is clear from the documentation provided to the panel that the notice of hearing was sent to Mr Olamuyiwa and his representatives well in excess of the required 28 days. The panel is satisfied that the Nursing and Midwifery Council has fulfilled the requirements for notification and service of documentation in relation to today s hearing to Mr Olamuyiwa and his representatives as set out in rules 11 and 34. The panel next considered whether it should proceed in the absence of Mr Olamuyiwa and his representatives. Pursuant to rule 21 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, the panel has decided that it would be in the interests of justice to proceed in the absence of Mr Olamuyiwa for the following reasons: The panel has listened to your submissions and has taken into account the advice of the legal assessor. The panel has considered the principles arising from the judgment in R v Jones [2002] UKHL 5. The panel has kept at the forefront of its thinking the principle that the discretion to proceed in the absence of a registrant is one which requires the utmost care and caution. The Nursing and Midwifery Council have not arranged for any witnesses to give evidence today, however one of the alleged convictions in the charges faced by Mr Olamuyiwa is alleged to have occurred as long ago as February The charges faced by Mr Olamuyiwa are serious the panel considers that it is in the public interest to proceed with the hearing today in view of the potential need for public protection. There has been no explanation from Mr Olamuyiwa or his representatives for his absence nor has there been any application to adjourn the hearing. The panel is therefore satisfied that, knowing of the hearing today, Mr Olamuyiwa has voluntarily absented himself. Were the hearing today to be adjourned, the panel is confident that there is no reason to believe that Mr Olamuyiwa or his representatives would be more likely to attend the adjourned hearing. Page 2 of 8

3 The panel has therefore concluded that it is in the interest of justice to proceed in the absence of Mr Olamuyiwa. Any potential unfairness to Mr Olamuyiwa is outweighed by the public interest in an expeditious hearing. Determination on the facts The allegation relates to a conviction Mr Olamuyiwa received for drink driving in February 2004 and a conviction for voyeurism in January The panel has taken into account the evidence before it including your submissions on behalf of the Nursing and Midwifery Council. It has heard and accepted the advice of the legal assessor. Rule 31 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. The panel has received advice from the legal assessor that the copies of the certificates of the 2 convictions provided are properly certified by a competent officer of the Court in the United Kingdom. On the basis of the certificates of conviction, the panel finds the facts in charges one and two proved. Having announced the facts proved the panel will now invite you to adduce further evidence and make further submissions as to whether, on the basis of the facts found proved, Mr Olamuyiwa s fitness to practise is impaired by reason of his convictions. Determination on impaired fitness to practise The panel has considered on the basis of the facts found proved whether Mr Olamuyiwa s fitness to practise is impaired under the amended Rule 24 (12) of the Nursing and Midwifery Council Fitness to Practise Rules It has taken account of all the evidence before it and your submissions. You submitted on behalf of the Nursing and Midwifery Council, that Mr Olamuyiwa s fitness to practise is impaired by reason of his convictions. The convictions and the circumstances surrounding them were serious and involved breaches of the Nursing and Midwifery Council Code of Conduct (April 2004 and May 2008). You submitted that Mr Olamuyiwa s convictions and failure to adhere to the laws of the country in which he was practising have brought the reputation of the nursing profession into disrepute. This case relates to two convictions. The first was for drink driving on 15 December Mr Olamuyiwa was found with 122mg alcohol in 100 ml of blood. The drink drive limit is 80mg per 100ml of blood. Mr Olamuyiwa pleaded guilty and was sentenced by Hendon Magistrates Court on 18 February He was sentenced to 12 months disqualification, a 250 fine and ordered to pay 50 costs. The second offence relates to a conviction for voyeurism. On 10 January 2009, at about 10pm, a witness went out to have a cigarette and saw Mr Olamuyiwa peering through a bedroom window in the house opposite. He called his wife out to look and she too witnessed this. The witnesses stated that the blinds of the window were slightly open and the wife could see that there was a light on in the room. The witnesses continued to watch Mr Olamuyiwa, and at 10:40 pm, the first witness called the police. Page 3 of 8

4 Having called the police, he went back outside but Mr Olamuyiwa appeared to be gone. His wife informed him that the man was in fact sitting in the car which was parked outside the bedroom window. Mr Olamuyiwa was in his car for about 15 minutes. When the witness and his wife looked again, 10 minutes later, the car was gone. Due to what they had seen, the witness and his wife went and informed the occupants of the house opposite. A short while after that, Mr Olamuyiwa s car was again parked on the street. Mr Olamuyiwa was seen by the witness inside the garden looking in the bedroom window. This time, because the victim had been alerted by the witness, she was also looking out of the window and also saw Mr Olamuyiwa standing on the path and staring at her. The police arrived at the scene and spoke to Mr Olamuyiwa who claimed he had just dropped off a customer and was walking to the garage to buy cigarettes. Mr Olamuyiwa was arrested, taken to the police station and interviewed. In his interview, he explained that he had gone into the garden because he had an upset stomach and needed to go to the toilet. He claimed that he did not look in the window. He confirmed that he was embarrassed and so had made up the story about the cigarettes. Mr Olamuyiwa was charged with voyeurism, contrary to section 67 of the Sexual Offences Act In due course Mr Olamuyiwa pleaded guilty and so on 13 January 2010 was convicted at Blackfriars Crown Court. On 17 May 2010 he was sentenced at the same court to a 36 month community sentence, ordered to participate in sex offenders treatment, placed on the sex offenders registers for 5 years and ordered to pay 600 in costs. In his sentencing comments, the judge commented that It is clear that for some time you have been involved in voyeurism, exploiting your position as I recall it as a taxi driver attempting to conceal you genuine reason for being in specific locations. It is perfectly clear that your loitering activity has subsisted for a very long time; many, many years. The panel has not heard any evidence about other disciplinary matters or convictions. Neither the Act nor the Rules define what is meant by impairment of fitness to practise. The Nursing and Midwifery Council has defined Fitness to Practise as a registrant s suitability to remain on the register without restrictions. In deciding this matter the panel has exercised its independent professional judgement. The panel has heard and accepted the legal assessor s advice. It had regard to the Nursing and Midwifery Council Code of Professional Conduct 2004 and May The Nursing and Midwifery Council Code expressly states that nurses and midwives must comply with the laws of the country and uphold the reputation of the profession. By acting as he did, Mr Olamuyiwa was clearly in breach of all of these requirements of the Code as set out below; Page 4 of 8

5 Nursing and Midwifery Council Code of Professional Conduct May 2008 Under the heading Be open and honest, act with integrity and uphold the reputation of your profession on page 7, points 49, 50 and You must adhere to the laws of the country in which you are practising. 50 You must inform the NMC if you have been cautioned, charged or found guilty of a criminal offence. 61 You must uphold the reputation of your profession at all times. The panel determined that Mr Olamuyiwa s conviction for voyeurism and driving a motor vehicle whilst unfit through alcohol was serious breach of the Nursing and Midwifery Council Code of Conduct (May 2008). The panel considers that Mr Olamuyiwa has breached a fundamental tenet of the nursing profession. The panel has exercised its own judgement in considering the matter of impairment. Throughout its deliberations the panel has borne in mind its responsibility to protect 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. The panel is of the view that Mr Olamuyiwa s convictions and the behaviour involved, particularly in relation to the second conviction, would be likely to damage public confidence in the nursing profession. Such behaviour is wholly unacceptable. The panel considered the case of CHRE v NMC and Grant [2011] EWHC 97 and took into account the guidance provided by the judgement of Mrs Justice Cox as to the criteria relevant to determining questions of impairment of fitness to practise. The panel was mindful of the need to uphold proper standards of conduct and behaviour and to maintain public confidence in the profession. The panel had regard to whether the conduct which led to Mr Olamuyiwa s convictions is easily remediable, whether it has been remedied and whether it is likely to be repeated. The panel is being invited to find Mr Olamuyiwa s fitness to practise currently impaired on the basis of convictions. The panel considers that the facts on which the convictions were based involved serious misconduct. The panel has noted the sentencing judges comments that Mr Olamuyiwa has been engaged in voyeurism for a number of years and that the incident which led to the conviction for voyeurism was not an isolated incident. Mr Olamuyiwa was sentenced to participate in sex offenders treatment however the panel has no information before it about Mr Olamuyiwa s participation in this treatment or its outcome. The panel considers that the risk of repetition remains high. The panel considers that damage to the reputation of the nursing profession is not easily remediable. The panel considers that although there is no evidence of harm to patients, there was the potential for harm to members of the public resulting from Mr Olamuyiwa s actions which led to his convictions. Page 5 of 8

6 The panel has also concluded that public confidence in the nursing profession could not be properly maintained in the absence of a finding of impairment given the circumstances surrounding the convictions, in particular the conviction Mr Olamuyiwa received for voyeurism. The panel has determined, therefore, that his fitness to practise is currently impaired by reason of the convictions. The panel will now invite you to present any further information which may assist the panel in its deliberations on the appropriate sanction, if any, to be imposed on Mr Olamuyiwa s registration. Determination on sanction: In considering the appropriate sanction, the panel has applied the principle of proportionality, weighing the public interest against Mr Olamuyiwa s interests. It has also had regard to the guidelines set out in the NMC s document, Indicative Sanctions Guidance. The panel has a duty to protect the public interest. This includes the protection of patients, the maintenance of public confidence in the nursing profession and in the NMC as a regulator, and the declaring and upholding of proper standards of conduct and behaviour as set out in the NMC s Code of Professional Conduct. The panel recognises that the purpose of sanctions is not to be punitive, although they may have a punitive effect. The panel has concluded that there are no exceptional circumstances in this case which would justify taking no action on Mr Olamuyiwa s registration, given the serious nature of the convictions. Furthermore, if it took no action, the panel concluded that it would undermine public confidence in the nursing profession and in the NMC as its regulator. The panel then went on to consider whether a caution order would be the appropriate sanction. The panel noted the factors which are identified in the Indicative Sanctions Guidelines as likely to be present where this sanction may be appropriate. From the evidence before the panel it is apparent that Mr Olamuyiwa did not admit to the criminal charge at the first opportunity. The panel has not seen any evidence that his actions caused direct patient harm, however as already stated in its reasons for finding Mr Olamuyiwa s fitness to practise currently impaired, the panel considers that there was the potential for harm to members of the public including the patients who would be in his care if he were permitted to practise without restriction. The panel has not had the benefit of any references or testimonials on behalf of Mr Olamuyiwa. There is no evidence to suggest that the behaviour which led to the convictions has been repeated. There is limited evidence before the panel of any insight or remorse from Mr Olamuyiwa. The panel notes the sentencing judges comment that: Happily however it seems that you have reconciled yourself to what you have actually been doing and are now amenable to treatment In all the circumstances, in the panel s judgment, a caution order would not be appropriate in this case. The panel considers that a caution order even for the maximum period of five years would not be sufficient to mark the seriousness of Mr Olamuyiwa s Page 6 of 8

7 actions or maintain the public s confidence in the nursing profession and the regulatory process. The panel next considered whether it would be sufficient to impose conditions on Mr Olamuyiwa s registration. It has borne in mind that any conditions imposed would need to be appropriate, proportionate and workable. The panel is of the view that appropriate and practicable conditions could not be formulated to protect the public from the risk of repetition of acts by the registrant involving observing others for the purpose of obtaining sexual gratification. The panel also considered that this would not be a sufficient sanction in these circumstances. The panel then went on to consider the sanction of suspension. In doing so it noted guidance contained in Indicative Sanctions Guidance in relation to suspension. The panel bore in mind that the purpose of the sanction is not to punish the nurse for a second time in relation to a criminal conviction or caution. Mr Olamuyiwa received a Community Sentence for a period of 36 months in relation to his conviction of voyeurism on the 13 January He did not receive a custodial sentence however the panel note that Mr Olamuyiwa would still be serving the remaining period of his Community Sentence which was imposed on 17 May In R (on the application of Low) v GOC [2007] EWHC 2839 (Admin) Mr Justice Sullivan, referring to the statement of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512 that the reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price said: because of these considerations, the seriousness of the criminal offence, as measured by the sentence imposed by the Crown Court, is not necessarily a reliable guide to its gravity in terms of maintaining public confidence in the profession. In CHRE v (1) GDC and (2) Fleischmann [2005] EWHC 87 (Admin) a case concerning child pornography offences, Mr Justice Newman said that: as a general principle, where a practitioner has been convicted of a serious criminal offence or offences he should not be permitted to resume his practice until he has satisfactorily completed his sentence. Only circumstances which plainly justify a different course should permit otherwise. Such circumstances could arise in connection with a period of disqualification from driving or time allowed by the court for the payment of a fine. The rationale for the principle is not that it can serve to punish the practitioner whilst serving his sentence, but that good standing in a profession must be earned if the reputation of the profession is to be maintained. The panel has taken a very serious view of the convictions for voyeurism and drink driving. It struggled to reconcile such behaviour with that of a practising member of the nursing profession and considers that the public would view those actions as grossly inappropriate behaviour in a nurse particularly a nurse qualified to work in the area of learning disabilities. The panel has concluded that this behaviour is wholly incompatible with Mr Olamuyiwa remaining on the Nursing and Midwifery Council register. The panel has concluded that a period of suspension is not an appropriate, proportionate or sufficient sanction to send a signal to Mr Olamuyiwa and the nursing profession that his behaviour in committing two serious, unlawful offences is wholly Page 7 of 8

8 unacceptable for a member of the nursing profession. The panel considers that suspension is not sufficient to protect the public interest and, in particular, to uphold standards and maintain public confidence in the nursing profession. The panel has concluded that the only appropriate and sufficient sanction in this case is a striking off order. The panel has taken into consideration Mr Olamuyiwa s interests, however the panel considers that public interest significantly outweighs Mr Olamuyiwa s own interests in this case. Determination on interim order: 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 after Mr Olamuyiwa and his representatives have received notification of today s decision, has expired. 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 that it is necessary on one or more of three grounds; for the protection of the public, otherwise in the public interest or in the registrant s own interest. The panel may make an interim conditions of practice order or an interim suspension order for a maximum of 18 months. The panel heard and accepted the advice of the legal assessor and followed the guidance provided to panels. You submit that an interim suspension order is necessary for the protection of the public and is otherwise in the public interest in light of the panel s determinations for finding Mr Olamuyiwa s fitness to practise is impaired and its determination for imposing a striking off order.. The panel has concluded that an interim order is necessary for the protection of the public and that it is otherwise necessary in the public interest. The panel has decided that it is necessary to impose an interim suspension order. The panel considers that there is risk of repetition and that if repeated there is a real risk of harm to patients and members of the public. The panel relies on its reasons for its findings on impairment of fitness to practise and sanction for the imposition of the interim suspension order. The panel has determined that the period of the interim order shall be 18 months in the event that Mr Olamuyiwa appeals the panel s decision. If at the end of the appeal period of 28 days, Mr Olamuyiwa has not lodged an appeal, the interim order will lapse and be replaced by the striking off order. On the other hand if Mr Olamuyiwa does lodge an appeal, the interim order will continue to run. Page 8 of 8