Conduct and Competence Committee Substantive Hearing

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1 Conduct and Competence Committee Substantive Hearing 20 December 2013 NMC, 61 Aldwych, London, WC2B 4AE Name of Registrant Nurse: Anne Elizabeth Lambert NMC PIN: 73I1261E Part(s) of the register: Registered Nurse sub part 1 Adult Nursing (March 1977) Area of Registered Address: England Type of Case: Misconduct / Conviction Panel Members: Jennifer Laing (Chair, Registrant member) Ian Potter (Lay member) Roger Cobley (Registrant member) Legal Assessor: Fiona Barnett Panel Secretary: Mairead Shenton Mrs Lambert: Present and represented by Ian Pettifer, Solicitor, Davies and Partners Solicitors Nursing and Midwifery Council: Represented by David Collins, Counsel, instructed by the NMC Regulatory Legal Team Facts proved: Charge 1, charge 2.1 and charge 2.2 by way of admission Facts not proved: Charge 3 Fitness to practise: Impaired, by reason of conviction Sanction: Caution order 3 years Page 1 of 11

2 Details of charge: That you, a registered nurse, whilst employed by Derby Hospitals NHS Trust: 1. On 6 December 2011 were convicted at Market Bosworth Magistrates Court of driving a motor vehicle with excess alcohol contrary to section 5(1) (a) of the Road Traffic Act 1988; 2. Failed to notify of the above conviction promptly: 2.1. The Nursing and Midwifery Council; 2.2. Your employer; 3. Your actions as set out in charge 2 were dishonest. And, in light of the above your fitness to practise is impaired by reason of your conviction in charge 1 and/or misconduct in charge 2 and/or 3. Determination on the findings on facts: Mrs Lambert, In reaching its decisions on the facts, the panel considered all the evidence before it, together with the submissions made by Mr Collins, on behalf of the NMC, and those made by Mr Pettifer, on your behalf. The panel heard and accepted the advice of the legal assessor, which included reference to the case of Uddin v GMC (2012) EWHC 2669 (Admin). The panel was mindful that the burden of proof rests on the NMC, and that the standard of proof is the civil standard, namely the balance of probabilities. This means that a fact would be proved if the panel was satisfied that it was more likely than not that the matter alleged occurred. The matters giving rise to the charges occurred whilst you were employed as a band 6 registered nurse at Royal Derby Hospital by Derby Hospitals NHS Foundation Trust ( the Trust ). On 17 September 2011, you were stopped by the police on suspicion of driving a motor vehicle whilst under the influence of alcohol. You were charged and, on 6 December 2011, you entered a guilty plea and were convicted at Market Bosworth Magistrates Court of driving a motor vehicle with excess alcohol. You were fined and disqualified from driving for 20 months. Page 2 of 11

3 The police informed the NMC of your conviction in March 2012 and you acknowledged the conviction in a letter to the NMC dated 3 August Enquiries with the Trust and your letter indicated that you did not inform your employer of your conviction until June At this stage of the proceedings, the panel heard oral evidence from you. The panel also heard oral evidence from one witness called on your behalf by telephone; namely, Ms 1, Senior Ward Sister at Heartlands Hospital. At the start of this hearing you admitted the following charges: charge 1 and charge 2 in its entirety. These were therefore announced as found proved by way of admission. The panel then went on to consider the remaining charge. The panel considered charge 3 and made the following findings: Charge 3: Your actions as set out in charge 2 were dishonest. This charge was found NOT PROVED. The panel had regard to a statement written by you and dated December 2013, which stated: At the time that I was stopped and processed by the Police, I informed them that I am a nurse. They told me that they would notify the NMC, because drink driving is a notifiable offence. They did not say anything to me about my duty to notify the NMC or my employer. You told the panel, as set out in your written statement: I was aware of the obligation to inform the NMC if I have been found guilty of a criminal offence, but I did not know the procedure. I did not know how or when to report it. I looked at the NMC website for guidance at the time of the court case. I cannot remember exactly what pages I read, but I do remember that I read the Policy for nurses and midwives who have received a caution or conviction for an alcohol or drug related offence. After looking at the NMC website, it was my understanding that the correct time for me to make a report to the NMC was on the Notice of Practice Form which has to be submitted every three years with my PIN renewal. The next NOP form was due to be completed in March After reading the website, I did not realise that I had a duty to report it to my employer. It was not clear to me, at the time, that this should be treated as an issue affecting my fitness to practise. It had taken place outside work, and was not connected with the workplace. Page 3 of 11

4 You stated that you were represented by a solicitor during the court proceedings, and that he did not give you any advice about your duty to notify the NMC or your employer at any stage. You said that you understand that the police informed the NMC of your conviction on 21 March You said that, as a nurse, you have to be clear and focused and that you have been trained to shut off your outside life when you are at work. You stated: Asking for help and guidance from others about an issue which took place outside work did not come naturally to me. You told the panel that you did not intend to conceal information or deliberately withhold the fact of your conviction. You said: I thought that the Police would report it and that I should report it on the Notice of Practice form when my registration was due for renewal. In cross examination, you said that you were not aware that the NMC treated incidents which occurred outside of a registrant s nursing practice as seriously as clinical errors or incidents. You confirmed that as part of your nursing training you were made aware of The Code: Standards of conduct, performance and ethics for nurses and midwives 2008 ( the Code ) published by the NMC. You said that you were not aware that you had to inform the NMC directly of your conviction and that, having looked at the NMC website, you believed that you had to indicate your conviction on a Notice of Practice Form. You were directed to a copy of the NMC s Policy for nurses and midwives who have received a caution or conviction for an alcohol or drug related offence. You said that there is nothing in the document which tells you how to report a conviction to the NMC. The panel recognised that there have been no concerns in respect of your integrity prior or subsequent to this incident. It had regard to the testimonials provided on your behalf, written by colleagues and management at the Trust, which attest to your honesty and professionalism. The panel was of the view that your oral evidence was credible and compelling, and it had no reason to doubt it. In its consideration of this charge, the panel had regard to the fact that you informed the police that you were a nurse on 17 September 2011 when you were stopped whilst driving. In the panel s view, the fact that you immediately informed the police of your status as a registered nurse indicates that you were not attempting to conceal your profession. The panel also took account of your evidence that the police told you that driving whilst under the influence of alcohol was a notifiable offence. The panel accepted your evidence that you had inferred from this that the police would inform the NMC and your employer about your conviction. Page 4 of 11

5 In relation to charge 2.1, the panel noted that you consulted the NMC website, which refers to a registrant who has already been referred to the NMC. In the panel s view, the information you viewed, which you provided to the panel, does not provide clarity in relation to how and when to notify the NMC of such a conviction. Furthermore, the NMC did not seek to adduce any additional information as to the content of the NMC website at the relevant time or the procedures to be followed in a case such as this. Your evidence was that you believed that you had to disclose your conviction on your Notice of Practice Form, and the panel noted that you did so. In relation to charge 2.2, the panel noted that you informed your employer about your conviction immediately following your receipt of the notice of referral from the NMC, dated 23 May The panel considered that it was at this time that it became evident to you that you needed to inform your employer. Prior to this, you had inferred that the police would inform them of your conviction. The panel concluded that although you accepted that you failed to notify the appropriate parties promptly of your conviction, it was not satisfied that you acted deliberately and dishonestly to conceal it from your employer and the NMC. The panel therefore found charge 3 not proved. Determination on impairment: Mrs Lambert, Having announced its finding on the facts, the panel then moved on to consider first whether the facts found proved in charge 2 amounted to misconduct and, if so, secondly, having regard to all the charges found proved, whether your fitness to practise is currently impaired by reason of that misconduct and by reason of your conviction. The NMC has defined fitness to practise as a registrant s suitability to remain on the register without restriction. The panel had regard to your written statement of December 2013, in which you stated: The drink driving incident occurred during an evening out with friends, when I was not on duty [ ]. I had done everything to make sure that I would not drive a car, so that I could enjoy a drink with my friends and would be able to get safely to a hotel near the venue where we were going out. [ ] When the incident happened, I felt very uncomfortable and threatened by the man who my friends had introduced and left me with, and I was concerned for my safety. I was not thinking clearly. It was out of character for me to drive a car after drinking alcohol. Your statement went on to say that you believed the police would report your conviction and that you should report it to the NMC on the Notice of Practice form when your registration was due for renewal. Page 5 of 11

6 The panel also had regard to the three testimonials from colleagues and management at the Trust at this stage of the proceedings. In his submissions in relation to misconduct, Mr Collins referred the panel to the case of Roylance v GMC (no. 2) [2000] 1 AC 311, which defines misconduct as a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances. Mr Collins invited the panel to take the view that your actions set out at charge 2 amounted to a breach of The Code: Standards of conduct, performance and ethics for nurses and midwives 2008 ( the Code ). He submitted that the following provisions were breached by you: 50: You must inform the NMC if you have been cautioned, charged or found guilty of a criminal offence; 51: You must inform any employers you work for if your fitness to practise is called into question. In relation to charge 2.1, Mr Collins stated that, although you believed you could inform the NMC of your conviction in your Notice of Practice Form, such notification only occurs once every three years. He submitted that such action would not be sufficient to inform the NMC of a conviction and that you are therefore in breach of the Code. In relation to charge 2.2, Mr Collins submitted that you breached provision 51 of the Code, as set out above. He contended that the police told you that they would notify the NMC of your conviction; Mr Collins submitted that, in this case, you would have been aware that your fitness to practise had been called into question and that you were therefore under a duty to inform your employer of the conviction at that time. Mr Collins then moved on to the issue of impairment, and submitted that there are attitudinal and behavioural issues in this case. He submitted that you have demonstrated a lack of awareness of basic employment obligations and provisions in the Code. Mr Collins contended that your personal embarrassment about your conviction held you back from seeking advice about how to report it to the NMC. In relation to your conviction, Mr Collins directed the panel to consider paragraph 74 of the judgment in Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin), in which Mrs Justice Cox stated: In determining whether a practitioner s fitness to practise is impaired by reason of Page 6 of 11

7 misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances. He contended that public confidence in the nursing profession would be undermined if a finding of impairment were not made in the light of the seriousness of your conviction. He said that drinkdriving increases the risk of serious accidents, which could cause harm to members of the public. Mr Collins stated that the protection of the public is fundamental to the nursing profession. He submitted that, by driving whilst under the influence of alcohol, you put the public at risk of harm. Mr Collins therefore invited the panel to conclude that your fitness to practise is currently impaired. Mr Pettifer, in his submissions in relation to misconduct, invited the panel to bear in mind the testimonials provided on your behalf, and the fact that these colleagues, other nursing professionals, did not view your actions as deplorable. Mr Pettifer submitted that you failed to disclose your conviction as you were not aware you should have done so at the relevant time. He submitted that your actions were not sufficiently serious so as to amount to misconduct, and that your failure to notify the NMC and your employer was a single omission. In relation to charge 2.1, Mr Pettifer submitted that provision 50 does not indicate when the NMC should be notified of a conviction. In relation to charge 2.2, Mr Pettifer submitted that provision 51 indicates that you had a duty to inform your employer when your fitness to practise is called into question, and not at the point at which you were convicted. He contended that you did not therefore breach this provision, as you informed your employer about your conviction following your receipt of the notice of referral from the NMC, dated 23 May Mr Pettifer said that you accept that drink-driving is a serious offence, but reminded the panel that this was an isolated incident in an otherwise unblemished career, which took place outside of a work context. He submitted that your actions did not bring the profession into disrepute, as the incident was entirely separate from your role as a registered nurse and reminded the panel that no one was harmed as a result of your driving whilst under the influence of alcohol. Mr Pettifer submitted that you have demonstrated insight into your conduct set out in charge 2, and into the actions which led to your conviction. In the light of your remorse and insight, he contended that there is no risk of repetition of such behaviour. In relation to the issue of remediation, Mr Pettifer told the panel that you undertook a drink driving course on 28 March 2012, which led to a Page 7 of 11

8 reduction in the duration of your driving ban. He told the panel that you are a competent and wellregarded nurse. The panel heard and accepted the advice of the legal assessor, which included reference to the cases of Roylance, GMC v Meadow [2007] QB 462 (Admin), Cheatle v General Medical Council [2009] EWHC 645 (Admin), and Yeong v General Medical Council [2009] EWHC 1923 (Admin). The panel was also referred to the judgment of Grant which sets out guidance for the consideration of current impairment, specifically the questions of whether a registrant: 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 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 profession; and/or d) N/A. When determining whether the facts found proved amounted to misconduct the panel had regard to the meaning of misconduct, as referred to in Roylance. It also had regard to the terms of the Code in force at that time, namely the May 2008 edition. In reaching its decision the panel exercised its own professional judgement.. In relation to charge 2, the panel was of the view that you did not adhere to provisions 50 and 51 of the Code, which state: You must inform the NMC if you have been cautioned, charged or found guilty of a criminal offence and You must inform any employers you work for if your fitness to practise is called into question. These provisions are relevant to your failure to notify the NMC and your employer promptly of your conviction. However, the panel was mindful that a breach of the Code does not automatically result in a finding of misconduct. The panel noted that this appears to be an isolated incident; the panel was of the view that this was a negligent act, caused by your reliance on others to inform the NMC and your employer of your conviction rather than you taking personal accountability. The panel also had regard to its earlier findings that the NMC website, at that time, did not provide clarity in relation to how and when to notify the NMC of a criminal conviction. The panel considered that your actions, although amounting to a breach of the Code, were not serious enough to constitute misconduct. The panel next went on to decide if, as a result of your conviction, your fitness to practise is currently impaired. Page 8 of 11

9 The panel noted that there are no concerns in relation to patient safety or the standard of your clinical practice as a nurse. The panel determined that your conviction for driving whilst under the influence of alcohol brought the profession into disrepute. Although this incident took place outside of a work environment, you nonetheless put the public at risk of serious harm. The panel was of the view that you have demonstrated insight and remorse in respect of your conviction, and it did not consider that, in the future, you are liable to repeat the actions which led to your conviction and bring the profession into disrepute. However, the panel bore in mind the judgement of Mrs Justice Cox in the case of Grant in considering impairment, and in particular paragraph 74, as referred to by Mr Collins in his submissions. The panel had in mind the wider public interest, which includes maintaining confidence in the nursing profession and upholding proper standards of conduct and behaviour. Having regard to the public interest, the panel was satisfied that your fitness to practise is currently impaired by virtue of your conviction. The panel concluded that confidence in the profession would be undermined if a finding of impairment were not made in the light of such behaviour. Determination on sanction: Mrs Lambert, The panel considered this case very carefully and has determined to make a caution order for a period of three years. The effect of this order is that your name on the NMC register will show that you are subject to a caution order and anyone who enquires about your registration will be informed of this order. In reaching this decision the panel had regard to all the evidence presented in this case. The panel heard and accepted the advice of the legal assessor. 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 have that effect. The panel had careful regard to the Indicative Sanctions Guidance published by the NMC. It recognised that the decision on sanction is a matter for the panel exercising its own independent judgment. Mr Collins made no submissions in respect of sanction. Page 9 of 11

10 Mr Pettifer submitted that this is an exceptional case where it would be appropriate for a panel to take no action; he reminded the panel of its findings that you are not liable to repeat your actions or bring the profession into disrepute and than there are no concerns in relation to your clinical practice. He contended that your conviction was an isolated incident, which arose out of particular circumstances where you were placed under stress and in fear. Mr Pettifer stated that the panel s finding of impairment is sufficient in itself to satisfy the public interest. Mr Pettifer submitted that if the panel was minded to impose a caution order, such an order should be imposed for the shortest possible period. The panel first considered whether to take no action but decided that this would not be in the public interest; a conviction of this nature requires a sanction in order to maintain public confidence in the nursing profession and its regulation. The panel considered the available sanctions in ascending order, considering the least restrictive first. In considering whether a caution order would be appropriate in the circumstances, the panel took into account the Indicative Sanctions Guidance, which states that a caution order may be appropriate where the panel wishes to mark that the behaviour was unacceptable and must not happen again, and where the nurse or midwife s history is such that the panel is confident that there is no risk to the public or to patients which requires the nurse or midwife s practice rights to be restricted. The panel had regard to the aggravating and mitigating features of this case. In relation to aggravating features, your conviction was for a serious criminal offence, which had the potential to cause harm to the public. The panel then went on to consider mitigating features, which, in the panel s view, carried substantial weight in determining the appropriate and proportionate sanction. The panel was of the view that you have demonstrated genuine remorse and insight. The conviction, although serious, was an isolated incident in a lengthy and otherwise unblemished career. The panel noted that you made full admissions to the charges found proved in these proceedings and that you entered a guilty plea at court. The panel had regard to the positive authenticated testimonials provided on your behalf, and the evidence before it is that you are a competent nurse who is well regarded by Page 10 of 11

11 colleagues and management. The panel was of the view that these proceedings have been a salutary experience for you. Weighing all of the above, the panel was confident that the risk of your repeating the conduct which led to your conviction in the future is remote. The panel was of the view that there is in fact a public interest in retaining the services of a committed and competent nurse, and did not consider it necessary to restrict your practice rights. The panel concluded that your conviction could not be addressed through a conditions of practice order, particularly as it was an isolated incident. The panel therefore considered whether a suspension order would have been appropriate. It concluded that, despite your criminal conviction, a suspension order would be disproportionate in the particular circumstances of your case, and determined that temporary removal from the register was not necessary to satisfy the public interest. The panel decided that a caution order was the appropriate and proportionate sanction, and it determined that a period of three years was necessary to address the seriousness of your conviction, whilst also reflecting the fact that this was an isolated incident. The panel was confident that maintaining the public s trust in the profession does not require the imposition of a more restrictive sanction. For the next three years your employer or any prospective employer will be aware that your fitness to practise was found to be impaired and that your registration is subject to a caution order. The panel determined that a caution order would be sufficient to maintain public confidence in the nursing profession, and would also send to the public and to the profession a clear message about the standards required of a registered nurse. At the end of this period the caution on your entry in the register will be removed. However, the NMC will keep a record of the panel s finding that your fitness to practise had been found to be impaired. In the event that the NMC receives a further allegation that your fitness to practice is impaired, the record of this panel s finding and its determination will be made available to any practice committee which considers the new allegation. This decision will be confirmed to you in writing. That concludes this determination. Page 11 of 11

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