Nursing and Midwifery Council Fitness to Practise ... · PDF file1 . Nursing and Midwifery Council . Fitness to Practise Committee . Substantive Hearing . 9-11 January 2018 . Nursing

1

Nursing and Midwifery Council Fitness to Practise Committee

Substantive Hearing 9-11 January 2018

Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: Fabrizio D’Imperia NMC PIN: 16F0463C Part(s) of the register: RN1, Registered Nurse – Sub part 1 Adult (June 2016) Area of Registered Address: Overseas Type of Case: Lack of knowledge of English and/or

Misconduct Panel Members: Stuart Gray (Chair, Lay member)

Andrew Wimbor (Registrant member) June Robertson (Lay member)

Legal Assessor: Martin Goudie QC Panel Secretary: Ayesha Patel Registrant: Not present and not represented in absence Nursing and Midwifery Council: Represented by Helen Fleck, Case Presenter. Facts proved: 1 (in its entirety) and 2. Facts proved by admission: N/A Facts not proved: N/A Fitness to practise: Impaired; both as a result of lack of knowledge

of English, and Misconduct Sanction: Striking-Off Order

2

Interim Order: Suspension order – 18 months

3

Details of charge:

That you, a registered nurse:

1. Do not have the necessary knowledge of English to practise safely and

effectively in that you

1.1 On 12 August 2016;

1.1.1 could not state priorities of care;

1.1.2 could not fully complete the following documentation;

1.1.2.1 Handover Sheets;

1.1.2.2 Drug Charts and/or Fluid Charts and

1.1.2.3 Discharge Documents

1.1.3 could not communicate effectively with patients

in that you;

1.1.3.1 could not provide explanations to

patients;

1.1.3.2 lacked ability to ask questions of

patients;

1.1.3.3 did not engage in conversation with

patients;

1.1.3.4 could not communicate effectively with

colleagues to demonstrate your

understanding when required to do so;

1.1.3.5 appeared not to retain information given to

you by colleagues relating to medication

administration

And/Or

4

2. Failed to co-operate with NMC investigation in relation to your knowledge of English in that you did not comply with the NMC’s direction to take a language assessment.

And, in light of the above, your fitness to practice is impaired by reason of your lack of knowledge of English and/or your misconduct.

5

Decision on Service of Notice of Hearing The panel was informed at the start of this hearing that Mr D’Imperia was not in

attendance and that written notice of this hearing had been sent to his registered

address, last updated on the NMC system on 9 November 2017, by international

recorded delivery and by first class post on 29 November 2017. Notice of this hearing

was received in Torino, Italy on 6 December 2017, to be processed for delivery.

The panel took into account that the notice letter provided details of the allegation, the

time, dates and venue of the hearing and, amongst other things, information about Mr

D’Imperia’s right to attend, be represented and call evidence, as well as the panel’s

power to proceed in his absence.

Ms Fleck submitted the NMC had complied with the requirements of Rules 11 and 34 of

the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended (“the

Rules”).

The panel accepted the advice of the legal assessor.

In the light of all of the information available, the panel was satisfied that Mr D’Imperia

has been served with notice of this hearing in accordance with the requirements of

Rules 11 and 34. It noted that the rules do not require delivery and that it is the

responsibility of any registrant to maintain an effective and up-to-date registered

address.

Decision on proceeding in the absence of the Registrant The panel next considered whether it should proceed in the absence of Mr D’Imperia.

The panel had regard to Rule 21 (2), which states:

6

(2) Where the registrant fails to attend and is not represented at the hearing, the

Committee

(a) shall require the presenter to adduce evidence that all reasonable

efforts have been made, in accordance with these Rules, to serve the

notice of hearing on the registrant;

(b) may, where the Committee is satisfied that the notice of hearing has

been duly served, direct that the allegation should be heard and

determined notwithstanding the absence of the registrant; or

(c) may adjourn the hearing and issue directions.

Ms Fleck invited the panel to continue in the absence of Mr D’Imperia on the basis that

he had voluntarily absented himself. Ms Fleck submitted that there had been no

engagement at all by Mr D’Imperia with the NMC in relation to these proceedings and,

as a consequence, there was no reason to believe that an adjournment would secure

his attendance on some future occasion.


The panel noted that its discretionary power to proceed in the absence of a registrant

under the provisions of Rule 21 is not absolute and is one that should be exercised “with

the utmost care and caution” as referred to in the case of R v Jones [2002] UKHL 5;

[2003] 1 AC 1 and GMC v Adeogba [2016] EWCA Civ 162.

In addition to the letter dated 29 November 2017, the panel noted that the NMC wrote to

Mr D’Imperia by email on 8 December 2017 at an Italian email address. The panel was

informed that Mr D’Imperia had previously corresponded with the NMC using the same

email address in November 2016 and March 2017. The email dated 8 December 2017

from the NMC to Mr D’Imperia informed him of the date of this substantive hearing.

Further, Mr D’Imperia was asked whether he would be attending the hearing or be

7

represented in his absence; whether he was happy for the hearing to proceed in his

absence, and whether he wished to participate in the hearing by telephone or video link.

The panel noted that there had been no response to this email or to any other

correspondence from the NMC with regard to this hearing.

The panel has decided to proceed in the absence of Mr D’Imperia. In reaching this

decision, the panel has considered the submissions of the case presenter, and the

advice of the legal assessor. It has had particular regard to the factors set out in the

decision of Jones and Adeogba. It has had regard to the overall interests of justice and

fairness to all parties. It noted that:

• no application for an adjournment has been made by Mr D’Imperia

• he has not engaged with the NMC and has not responded to any of the letters

sent to him about this hearing;

• there is no reason to suppose that adjourning would secure his attendance at

some future date;

• three witnesses have attended today to give evidence;

• not proceeding may inconvenience the witnesses, their employer(s) and, for

those involved in clinical practice, the clients who need their professional

services;

• further delay may have an adverse effect on the ability of witnesses accurately to

recall events;

• there is a strong public interest in the expeditious disposal of the case.

The panel recognised that Mr D’Imperia could be disadvantaged by proceeding in his

absence. The evidence upon which the NMC relies will have been sent to him at his

registered address. He has made limited response to the allegations, in an email

containing a letter and attachments in November 2016 and in a further short email in

March 2017. He will not be able to challenge the evidence relied upon by the NMC and

will not be able to give evidence on his own behalf. However, in the panel’s judgment,

this can be mitigated. The panel can make allowance for the fact that the NMC’s

evidence will not be tested by cross examination and, of its own volition, can explore

8

any inconsistencies in the evidence which it identifies. Furthermore, the limited

disadvantage is the consequence of Mr D’Imperia’s decision to absent himself from the

hearing and waive his rights to attend and/or be represented.

In these circumstances, the panel has decided that it is fair, appropriate and

proportionate to proceed in the absence of Mr D’Imperia. The panel will draw no

adverse inference from his absence in its findings of fact.

Decision and reasons on application pursuant to Rule 31 The panel considered the documentary evidence, before it and considered the witness

statement of Ms 4. The panel asked Ms Fleck to make an application as to why Ms 4’s

witness statement should be read into the record as opposed to Ms 4 being present to

give live evidence at the hearing. Ms Fleck then made an application under Rule 31 of

the Rules to allow the written statement of Ms 4 into evidence.

In the preparation of this hearing, the NMC had indicated to Mr D’Imperia in the case

management form that it was intended that this witness would be exhibiting documents

taken from the NMC’s case management system, directly relevant to charge 2

(correspondence from the NMC to Mr D’Imperia and his responses in November 2016

and March 2017). Despite knowledge of the nature of the evidence to be given by this

witness, Mr D’Imperia made the decision not to attend this hearing. Further, he did not

raise any objection with the NMC to Ms 4’s witness statement being read into the

record. On this basis, Ms Fleck advanced the argument that there was no lack of

fairness to Mr D’Imperia in allowing Ms 4’s written statement into evidence.

The panel accepted the legal assessor’s advice on the issues it should take into

consideration in respect of this application. This included that Rule 31 of the Rules

provides that, so far as it is ‘fair and relevant,’ a panel may accept evidence in a range

of forms and circumstances, whether or not it is admissible in civil proceedings.

9

The panel gave the application in regard to Ms 4 serious consideration. The panel noted

that Ms 4’s statement had been prepared in anticipation of being used in these

proceedings and contained the paragraph ‘This statement … is true to the best of my

information, knowledge and belief’ and was signed by her.

In considering relevance, the panel was mindful that Ms 4’s evidence is directly related

to charge 2 and covers correspondence between the NMC and Mr D’Imperia. In

considering fairness, the panel had regard to the case management form presented by

Ms Fleck, with regard to this hearing. The case management form, along with Ms 4’s

witness statement, had been sent to Mr D’Imperia prior to this hearing and asked him,

among other things, to either agree to or raise any objection to Ms 4’ witness statement

being read into the record. The panel was satisfied that Mr D’Imperia had been sent

both the case management form, as well as the witness statement of Ms 4 in advance

of this hearing. He had chosen not to make it known to the NMC whether he had any

objection to Ms 4’s statement being read into the record.

In these circumstances, the panel came to the view that it would be fair and relevant to

accept into evidence the written statement of Ms 4.

10

Background The charges arose whilst Mr D’Imperia was employed by Aneurin Bevan University

Health Board (the Board) initially as a band 4 staff while he was awaiting his UK Nursing

Personal Identification Number (PIN) having previously practised as a nurse in his home

country of Italy. He was enrolled on a preceptorship programme known as the “Journey

of Excellence” or “JOE” programme, at the Royal Gwent Hospital (the Hospital),

coordinated by the Board Practice Educator, Ms 1. A key part of the JOE programme is

the completion of a competency skills portfolio in which trainees are assisted by a

mentor and other staff on the ward.

Concerns began to be raised in around August 2016 with regard to Mr D’Imperia’s

competencies, which were said to be centred around English language comprehension.

Ms 1 observed Mr D’Imperia during his participation on the JOE programme, as well as

on a shift on 12 August 2016. It is from Ms 1’s observations of Mr D’Imperia on this

particular shift that the majority of charges arise. The charges include failures to

appropriately complete a variety of documentation, an inability to communicate

effectively with patients and colleagues, and a failure to retain information.

With regard to charge 2, Mr D’Imperia was asked on four separate occasions, namely

25 January 2017, 8 February 2017, 1 March 2017 and 15 March 2017, by the NMC to

undertake language testing to definitely confirm the level of his English language skills.

No response was received by the NMC case officer, Ms 4, and the tests were not taken.

Further, Ms 4 emailed Mr D’Imperia on 27 March 2017 to which he responded, stating

that he would not be taking the International English Language Testing System (IELTS)

assessment and was not interested in working in the UK.

11

Decision on the findings on facts and reasons In reaching its decisions on the facts, the panel considered all the evidence adduced in

this case together with the submissions made by Ms Fleck, on behalf of the NMC.

The panel heard and accepted the advice of the legal assessor.

The panel was aware 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 the

facts will be proved if the panel is satisfied that it was more likely than not that the

incidents occurred as alleged.

The panel has drawn no adverse inference from the non-attendance of Mr D’Imperia.

The panel heard oral evidence from the following three witnesses called on behalf of the

NMC:

Ms 1 – Practice Educator at the Board at the time of the incidents. She was also

specifically responsible for the preceptorship programme providing support for staff in

their two years of practice. She had observed Mr D’Imperia during his participation on

the JOE programme and on the shift of 12 August 2016.

Ms 2 – Newly qualified nurse at the time of the incidents, who acted as an informal

quasi-mentor to Mr D’Imperia in the absence of his formal mentor.

Ms 3 – Band 6 Deputy Sister, working with Mr D’Imperia at the time of the incidents.

The panel first considered the overall credibility and reliability of all of the witnesses it

had heard from.

12

With regard to Ms 1, the panel was of the view that she was a reliable and honest

witness who answered questions without seeking to embellish. She had a good

recollection of the events and circumstances around the concerns which form the basis

of the charges in this case. The panel noted that Ms 1 had substantial experience

working with and training many cohorts of nurses from both Italy and Romania on an

annual basis at the Board. In the panel’s judgment, she provided a fair and balanced

perspective. She was credible and her oral evidence was consistent with both her

witness statement and her evaluation report of the shift of 12 August 2017, dated 17

August 2016.

With regard to Ms 2, the panel was of the view that she was credible, reliable, and

honest. She was also honest with regard to matters that she could not recall. In the

panel’s judgment, she was candid and also provided a balanced perspective, being very

fair to Mr D’Imperia. Her oral evidence was consistent with her witness statement.

With regard to Ms 3, the panel was of the view that she was also credible, reliable, and

honest. She was fair, considered, and unequivocal in her responses to questions, and

consistent throughout her evidence. Her oral evidence was also consistent with her

witness statement.

The panel considered each charge and made the following findings:

Charge 1.1.1:

That you, a registered nurse:



1.1 On 12 August 2016;

1.1.1 could not state priorities of care;

13

This charge is found proved.

In reaching this decision, the panel took into account the evidence of Ms 1, which

stated:

“The issues I identified from working with Fabrizio on 12 August 2016 were that

Fabrizio could not state priorities of care. I think this was in part due to his

language barrier.”

The panel also had regard to Ms 1’s evaluation report of Mr D’Imperia’s shift on 12

August 2016, which stated:

“Following the handover, prior to commencing the medicines, I asked Fabrizio if

he could provide me with a brief handover and to identify to me his care priorities

for the patients in the bay. Fabrizio did not seem to understand my request, and

looking at his handover sheet had not taken many notes. He was unable to

provide me with his priorities of care, focusing only on the need to start the

medicines.”

The panel was mindful that there was no reason to question Ms 1’s credibility and

assertions with regard to Mr D’Imperia’s language skills, as she had observed him both

during the JOE training programme, as well as during this particular shift on 12 August

2016.

Further, the panel had heard evidence from Ms 1, and supporting evidence from Ms 2

and Ms 3 that that there may have been attitudinal issues and/or a lack of competence

which may have contributed to Mr D’Imperia’s poor practice. However, all three

witnesses were also consistent in their evidence that Mr D’Imperia did not have

sufficient knowledge of the English language and that this contributed to his poor

practice. Upon reading the charges against Mr D’Imperia, in relation to his alleged lack

of knowledge of English, all three witnesses had said that the charges reflected their

14

observations and were “fair.” When questioned by the panel, Ms 3 had stated that Mr

D’Imperia’s lack of English skills presented a risk to patients.

The panel had regard to a letter from Mr D’Imperia to the NMC dated 14 November

2016, received by email, in which he stated:

“The situation in my ward was very difficult because I have not been helped by

my colleagues and managers to take part in the work environment. I felt

abandoned because my ward sister and my deputy ward sister did not speak

with me. .. I am very surprise about the complain for my English communication

because I did have my job interview for the… and nobody complained about my

English.”

The panel noted Mr D’Imperia’s assertions but considered Ms 1’s evidence that she had

spoken to him and “many comments” had been made to him that he needed to improve

his English language skills. When put to all three witnesses that Mr D’Imperia had not

been helped by his colleagues and managers, all three witnesses maintained that Mr

D’Imperia had been supported, both in terms of amending his training programme to

allow for extra practice hours, and in terms of support from staff. They said that every

foreign training nurse was put to work alongside a registered nurse.

Further, the panel had regard to an email from Mr D’Imperia dated 27 March 2017, in

which he stated:

“I worked in UK for 11 months and I suffered racism, mobbing about my ward

manager and when I asked for my references to work in another hospital I

received the complaint.”

When Mr D’Imperia’s comments were put to Ms 1, Ms 2 and Ms 3, the panel was of the

view that all three witnesses were genuinely taken aback and surprised. All three

witnesses acknowledged that the ward was busy, and that there were cultural

15

differences in the way Italian and British nurses work, with Italian nurses accustomed to

participating in more technical practice and less basic nursing care. However, all three

witnesses maintained that they had not been aware of any discriminatory behaviour

towards Mr D’Imperia. Rather, that he had isolated himself and it was difficult to

communicate with him.

Further, the panel considered that Mr D’Imperia was one among a number of Italian

nurses training at the hospital. All three witnesses had asserted that other Italian nurses

seemed to have far less of a communication problem and were also able to

demonstrate better practice.

Having considered all of the evidence, the panel found that it is more likely than not that

Mr D’Imperia, on 12 August 2016, did not have the necessary knowledge of English to

practise safely and effectively in that he could not state priorities of care.

Charge 1.1.2.1:



1.1 On 12 August 2016;


1.1.2.1 Handover Sheets;



stated:

“The issues I identified from working with Fabrizio on 12 August 2016 ... I think

this was in part due to his language barrier. Also he did not write anything on his

handover sheet or ask any questions. The handover sheet is a pre-printed sheet

16

with patient’s names and basic information, mainly regarding safety; ward staff

document on these sheets notes to guide their priorities of care through their

shifts. The nurses have a handover for the whole ward. During the shift, despite

Fabrizio having one of these sheets, I was having to prompt him in his care

interventions and priorities.”



“Following the handover, prior to commencing the medicines, I asked Fabrizio if

he could provide me with a brief handover and to identify to me his care priorities

for the patients in the bay. Fabrizio did not seem to understand my request, and

looking at his handover sheet had not taken many notes. He was unable to

provide me with his priorities of care, focusing only on the need to start the

medicines.”

The panel was again mindful that there was no reason to question Ms 1’s credibility and

assertions with regard to Mr D’Imperia’s language skills, as she had observed him both

during the JOE training programme, as well as during this particular shift on 12 August

2016.

Further, as with charge 1.1.1, the panel bore in mind the consistent evidence from Ms 1,

Ms 2 and Ms 3 that Mr D’Imperia’s English language skills had been poor.



fully complete handover sheets.

Charge 1.1.2.2:

17



1.1 On 12 August 2016;


1.1.2.2 Drug Charts and/or Fluid Charts and



stated:

“Also I talked to him about not doing fluid chart forms, he just looked at me. I

think this was a language issue as well but the charts are a constant part of the

care.”



“During the afternoon, I asked him to check that his fluid balance charts and

observation charts were up to date. I explained the importance of clear and

consistent fluid balance monitoring, an absolute requisite in urological patients

where assessment of output versus input was essential. I am not sure if he

understood this, because he was not proactive in getting this done.”

As with the findings in relation to the previous charges, the panel was again mindful of

the consistent evidence from Ms 1, Ms 2 and Ms 3 that Mr D’Imperia’s knowledge of

English was poor.



fully complete drug charts or fluid charts.

18

Charge 1.1.2.3:



1.2 On 12 August 2016;


1.1.2.3 Discharge Documents



stated:

“When I observed him doing a discharge, he did not speak much on the phone. I

think Fabrizio felt uncomfortable on the phone, this is common for overseas

nurses and I think this was about language ability. Fabrizio had to be prompted

and did not know about the documentation used, he was not familiar with it and

picked up the wrong documentation. All of the semi-preprinted discharge letters

are in the same format so you have to read them to identify the correct one.”

As with the findings in relation to the previous charges, the panel was again mindful of

the oral evidence provided by Ms 1, Ms 2 and Ms 3. While Mr D’Imperia’s conduct may

have been contributed to by attitudinal issues or lack of competence, Ms 1, Ms 2 and

Ms 3 were all consistent in their assertions that Mr D’Imperia’s knowledge of English

was poor.



fully complete Discharge Documents.

19

Charge 1.1.3.1:



1.1 On 12 August 2016;

1.1.3 could not communicate effectively with patients in that

you;

1.1.3.1 could not provide explanations to

patients;



stated:

“He could not explain things and also could not do the soft skills with patients.

Also he lacked the ability to ask questions of patients. I saw that Fabrizio was not

comfortable verbally engaging with the patients and used broken English when

talking to me.”

The panel was mindful that Ms 1 has considerable experience working with and training

many nurses who have English as a non-native language. The panel was again mindful

of the assertions made by Ms 1, Ms 2 and Ms 3, with regard to Mr D’Imperia’s English

language capabilities.



communicate effectively with patients in that he could not provide explanations to

patients.

Charge 1.1.3.2:

20



1.1 On 12 August 2016;


you;

1.1.3.2 lacked ability to ask questions of

patients;


In reaching this decision, the panel again took into account the evidence of Ms 1, which

stated:

“He could not explain things and also could not do the soft skills with patients.

Also he lacked the ability to ask questions of patients. I saw that Fabrizio was not

comfortable verbally engaging with the patients and used broken English when

talking to me.”

As with the finding in relation to charge 1.1.3.1, having considered all of the evidence,

the panel found that it is more likely than not that Mr D’Imperia, on 12 August 2016, did

not have the necessary knowledge of English to communicate effectively with patients

in that he lacked the ability to ask questions of patients.

Charge 1.1.3.3:



1.1 On 12 August 2016;


you;

21

1.1.3.3 did not engage in conversation with

patients;


Again the panel took into account Ms 1’s evidence. For the same reasons as in the

previous two charges, having considered all of the evidence, the panel found that it is

more likely than not that Mr D’Imperia, on 12 August 2016, did not have the necessary

knowledge of English to communicate effectively with patients in that he did not engage

in conversation with patients.

Charge 1.1.3.4:



1.1 On 12 August 2016;


you;

1.1.3.4 could not communicate effectively

with colleagues to demonstrate your

understanding when required to do

so;


In reaching this decision, the panel took into account Ms 1’s evidence, as well as the

supporting evidence of Ms 2 and Ms 3.

The panel was again mindful of the consistent evidence from Ms 1, Ms 2 and Ms 3 that

not only was Mr D’Imperia’s knowledge of English, as Ms 3 stated in her oral evidence,

22

“very very poor” but also Ms 1’s evidence that aside from a “nod”, “look” or “shrugging

his shoulders a lot, it was difficult to get answers out of him.”

Ms 1 had stated that Mr D’Imperia had not been able to provide handovers to her.

Further, Ms 2 had stated that she had been asked to fulfil the role of a buddy or informal

“co-mentor” to Mr D’Imperia in the absence of his formal mentor. She appreciated that

her Welsh accent may be “hard to understand” but that Mr D’Imperia only

communicated with other Italian nurses in Italian. She added that he “seemed

uninterested” in communicating with her and she found it hard to communicate with him.

Further, she said that “you would tell him that he would have to do something now, and

he’d say okay, and then he wouldn’t do it.”

All three witnesses had been fair in that they said that other issues may have

contributed to Mr D’Imperia’s lack of communication with them. However all three

witnesses maintained that they were in no doubt that his lack of knowledge of English

contributed to his disengagement with colleagues.

Having considered all of the evidence adduced, the panel found that it is more likely

than not that Mr D’Imperia, on 12 August 2016, did not have the necessary knowledge

of English to communicate effectively with colleagues to demonstrate his understanding

when required to do so.

Charge 1.1.3.5:



1.1 On 12 August 2016;


you;

23

1.1.3.5 appeared not to retain information

given to you by colleagues relating to

medication administration;

This charge is found proved

In reaching this decision, the panel again took into account the evidence of Ms 1, which

stated:

“During the afternoon, he completed a medication round with a colleague

Fabrizio seemed to not remember the issues I had pointed out to him earlier in

the day relating to the same medication, I think this was because he had not

understood what I was saying.”

For the same reasons as in relation to the previous findings, having considered all of the

evidence, the panel found that it is more likely than not that Mr D’Imperia, on 12 August

2016, did not have the necessary knowledge of English to be able to retain information

given to him by colleagues relating to medication administration.

Charge 2:

2. Failed to co-operate with NMC investigation in relation to your knowledge of

English in that you did not comply with the NMC’s direction to take a language

assessment.

This charge is found proved In reaching this decision, the panel took into account the evidence of Ms 4, including the

correspondence between Mr D’Imperia and the NMC dated 25 January 2017, 8

February 2017, 1 March 2017, 15 March 2017 and 27 March 2017. The panel

considered that Mr D’Imperia was sent multiple communications over a course of three

24

months, with a direction from his regulator that he was required to undertake the IELTS

assessment. The panel was mindful that each communication informed Mr D’Imperia of

the consequences of his failure to take the IELTs assessment.

The letter dated 25 January 2017 stated:

“If you fail to comply with this direction to take the language assessment and

share the results with the NMC, the Conduct and Competence Committee may

draw such inferences as seem appropriate in relation to whether your fitness to

practice is impaired…”

The letter indicated that the NMC would pay for this test and that it can be undertaken in

international locations.

Further, the letter dated 15 March 2017 stated:

“If you do not complete the language assessment and give the results to the

NMC this may impact on you being able to work as a nurse in the UK in the

future.”

The panel noted that this had also been translated into Italian for Mr D’Imperia’s benefit.

Mr D’Imperia had also been informed by the NMC of his obligation to undertake the

tests, by email on 27 March 2017, to which he responded:

“I don’t will do the Ielts exam for the following reasons:

1. I worked in UK for 11 months and I suffered racism, mobbing about my wad

manager and when I asked my references to work in another hospital I

received the complaint.

2. I am an Italian and European nurse.

3. I’m not interested to work in the UK.”

25

The panel noted Mr D’Imperia’s rationale for not undertaking the test but was of the

view that the obligation to undertake the test and the consequences of not doing so had

been clearly set out. Further, the panel was in no doubt that he had not complied with

the direction set out by his regulator. In all the circumstances, the panel found that Mr

D’Imperia failed to co-operate with NMC investigation in relation to his knowledge of

English in that he did not comply with the NMC’s direction and obligation to take a

language assessment.

26

Submissions on misconduct and impairment:

Having announced its finding on all the facts, the panel then moved on to hear

submissions on misconduct and impairment in order to consider whether Mr D’Imperia’s

fitness to practise is currently impaired. There is no statutory definition of fitness to

practise. However, the NMC has defined fitness to practise as a registrant’s suitability to

remain on the register unrestricted.

No further evidence was adduced at this stage.

In her submissions, Ms Fleck reminded the panel that there are two routes or heads

through which Mr D’Imperia’s fitness to practise should be determined. The first being in

relation to charge 1 and whether Mr D’Imperio’s fitness to practise is impaired as a

result of not having the necessary knowledge of the English language. The second

being in relation to charge 2, whether his fitness to practise is impaired by reason of

misconduct.

Ms Fleck invited the panel to take the view that Mr D’Imperia’s actions amount to a

breach of The Code: Professional standards of practice and behaviour for nurses and

midwives (2015) (the Code). She then directed the panel to Paragraph 23 of the Code

and identified where, in the NMC’s view, Mr D’Imperia’s actions amounted to

misconduct.

Ms Fleck 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.’

She then moved on to the issue of impairment, and addressed the panel on the need to

have regard to protecting the public and the wider public interest. This included the

need to declare and maintain proper standards and maintain public confidence in the

profession and in the NMC as a regulatory body. Ms Fleck referred the panel to the

27

case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery

Council (2) Grant [2011] EWHC 927 (Admin).

The panel has accepted the advice of the legal assessor, which included reference to a

number of cases, these included: Roylance v General Medical Council (No 2) [2000] 1

A.C. 311, Cheatle v General Medical Council [2009] EWHC 645 (Admin), Ronald Jack

Cohen v General Medical Council [2008] EWHC 581 (Admin), R (on the application of

Remedy UK Ltd) v GMC 2010 EWHC 1245 Admin, and Royal Colleges of Veterinary

Surgeons v Samuel 2014 UKPC 13

The panel looked at the matters with regard to charge 1, firstly the issue of knowledge

of the English language and then secondly whether Mr D’Imperia’s fitness to practise is

currently impaired as a result of not having the necessary knowledge of the English

language. The panel then adopted a two-stage process in its consideration, with regard

to charge 2. First, the panel determined whether the facts found proved amount to

misconduct. The panel then decided whether, in all the circumstances if the facts found

proved amounted to misconduct, whether Mr D’Imperia’s fitness to practise is currently

impaired as a result of that misconduct.

28

Decision on impairment with regard to a lack of knowledge of the English language The panel considered the Code with regard to the facts found proved in relation to

charge 1. The panel, in reaching its decision in relation to impairment, had regard to the

public interest and accepted that there was no burden or standard of proof at this stage

and exercised its own professional judgement.

The panel considered whether Mr D’Imperia’s fitness to practise is currently impaired as

a result of not having the necessary knowledge of the English language, relating to

charge 1. Based on its findings of fact, the panel was of the view that there is clear

evidence that Mr D’Imperia did not have the necessary knowledge of English to practise

safely on 12 August 2016. The panel found that Mr D’Imperia, therefore, breached the

following paragraphs of the Code:

7 Communicate clearly

7.5 be able to communicate clearly and effectively in English.

8 Work cooperatively 8.2 maintain effective communication with colleagues

9 Share your skills, knowledge and experience for the benefit of people receiving care and your colleagues

9.1 provide … accurate and constructive feedback to colleagues

9.2 gather and reflect on feedback from a variety of sources, using it to improve

your practice and performance

10 Keep clear and accurate records relevant to your practice

29

Taking these breaches of the Code into account, the panel considered the judgement of

Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v (1)

Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) in reaching its

decision, in paragraph 74 she said:

In determining whether a practitioner’s fitness to practise is impaired by

reason of 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.

Mrs Justice Cox went on to say in Paragraph 76:

I would also add the following observations in this case having heard

submissions, principally from Ms McDonald, as to the helpful and

comprehensive approach to determining this issue formulated by

Dame Janet Smith in her Fifth Report from Shipman, referred to above.

At paragraph 25.67 she identified the following as an appropriate test for

panels considering impairment of a doctor’s fitness to practise, but in my

view the test would be equally applicable to other practitioners governed

by different regulatory schemes.

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 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

30

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; and/or

d. has in the past acted dishonestly and/or is liable to act

dishonestly in the future.

The panel finds that, in this case, limbs a and b of Grant are engaged. The panel was

mindful of the evidence adduced at the facts stage of the hearing as well as its own

findings with regard to the entirety of charge 1. Ms 3 had been unequivocal in her

assertion that Mr D’Imperia’s lack of knowledge of the English language would present

a risk to patients in his care. Further, she had stated that “if he didn’t understand them,

he would not engage and would walk away.” The panel considered that Mr D’Imperia

had been unable to communicate effectively with patients and colleagues, and had

been unable to deliver handovers with regard to his patients, as well as unable to

complete fluid charts. The panel was of the view that Mr D’Imperia had in the past acted

so as to put a patient or patients at unwarranted risk of harm. Further, in the panel’s

judgment, by not having the necessary level of English language skills and by putting

patients at risk, Mr D’Imperia had also brought the nursing profession into disrepute.

The panel had regard to a number of training certificates provided by Mr D’Imperia,

indicating that he had successfully demonstrated some competencies, although he had

“failed to make progress in some areas, notably his oral medications therefore he [was]

working with supervised practice” according to the reference from the Senior Nurse at

the Hospital.

Further, the panel had regard to a letter dated 14 November 2016 from Mr D’Imperia to

the NMC, along with email correspondence between the NMC and Mr D’Imperia. The

31

panel noted that Mr D’Imperia disputed the charges made out against him in relation to

charge 1.

The letter stated:

“The situation in my ward was very difficult because I have not been helped by

my colleagues and managers to take part in the work environment. I felt

abandoned because my ward sister and my deputy sister did not speak with me.

I was very frustrating about this situation…I am very surprise about the complain

for my English communication…”

Regarding insight and remediation, the panel considered that Mr D’Imperia did not

acknowledge his language or communication issues. He had chosen to blame his

colleagues for a lack of support. Further, while Mr D’Imperia had provided training

certificates with regard to his practice, he had not provided any evidence of remediation

with regard to his English language skills.

The panel bore in mind that the overarching objectives of the NMC are to protect,

promote and maintain the health, safety, and well-being of the public and patients, and

to uphold/protect the wider public interest, which includes promoting and maintaining

public confidence in the nursing and midwifery professions and upholding the proper

professional standards for members of those professions. The panel was of the view

that, in the absence of insight and remediation, Mr D’Imperia’s language and

communication issues would be likely to persist and his previous clinical shortcomings

would be repeated. In the panel’s judgment, therefore, Mr D’Imperia would also be

liable, in the future, to put patients at unwarranted risk of harm and to bring the

profession into disrepute. The panel therefore concluded that a finding of current

impairment with regard to Mr D’Imperia not having the necessary knowledge of English,

is necessary on the grounds of public protection and is also required in the public

interest.

32

Decision on misconduct

When determining whether the facts found proved amount to misconduct the panel had

regard to the terms of the Code.

The panel, in reaching its decision, had regard to the public interest and accepted that

there was no burden or standard of proof at this stage and exercised its own

professional judgment.

The panel was of the view that Mr D’Imperia’s actions, in failing to undertake the IELTS

assessment as directed by the NMC as his regulator, did fall short of the standards

expected of a registered nurse, and that his actions amounted to a breach of the Code.

Specifically:

23 Cooperate with all investigations and audits

This includes investigations or audits either against you or relating to others,

whether individuals or organisations.

The panel appreciated that breaches of the Code do not automatically result in a finding

of misconduct. However, the panel was mindful that a key role of the NMC, as Mr

D’Imperia’s regulator, is to assess whether he is safe to practise. Mr D’Imperia has a

duty to cooperate with his regulator. The panel was of the view that, by failing to comply

with a direction from the NMC in order to address the fundamental matter of safe

practice, Mr D’Imperia’s lack of cooperation fell seriously short of the standards

expected of a nurse and was serious enough to amount to misconduct.

33

Decision on impairment with regard to misconduct The panel next went on to decide if as a result of this misconduct, Mr D’Imperia’s fitness

to practise is currently impaired.

Nurses occupy a position of privilege and trust in society. They must make sure that

their conduct at all times justifies both their patients’ and the public’s trust in the

profession. In this regard the panel considered the judgement of Mrs Justice Cox in the

case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery

Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision, in paragraph 74

she said:

In determining whether a practitioner’s fitness to practise is impaired by

reason of 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.

Mrs Justice Cox went on to say in Paragraph 76:

I would also add the following observations in this case having heard

submissions, principally from Ms McDonald, as to the helpful and

comprehensive approach to determining this issue formulated by

Dame Janet Smith in her Fifth Report from Shipman, referred to above.

At paragraph 25.67 she identified the following as an appropriate test for

panels considering impairment of a doctor’s fitness to practise, but in my

view the test would be equally applicable to other practitioners governed

by different regulatory schemes.

34

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 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

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; and/or

d. has in the past acted dishonestly and/or is liable to act

dishonestly in the future.

The panel finds that, in the matter of Mr D’Imperia’s misconduct, limbs a, b, and c of

Grant are engaged.

The panel was of the view that effective communication skills are essential to safe

nursing practice. Further, the panel was mindful that it is incumbent upon a registrant to

comply with, and be accountable to, their regulator. In refusing to comply with the

NMC’s direction to undertake the English language assessment, and in the absence of

a definitive assessment of his communication abilities, Mr D’Imperia was putting

patients at unwarranted risk of harm and would be liable to do so in the future. By not

cooperating with his regulator, thereby not allowing his practice to be regulated, Mr

D’Imperia has brought and is liable in the future to bring the nursing profession into

disrepute. His failure to cooperate with the regulator on a central requirement of his

fitness to practise also breached a fundamental tenet of the nursing profession.

35

The panel had regard to the email dated 27 March 2017 from Mr D’Imperia to the NMC,

which stated:


1. I worked in UK for 11 months and I suffered racism, mobbing about my wad




3. I’m not interested to work in the UK.”

The panel noted Mr D’Imperia’s rationale for not taking the test. However, the panel was

mindful that Mr D’Imperia has a UK PIN and could therefore practise in the UK as a

registered nurse should he wish to in the future. The panel considered that there was no

evidence of insight on Mr D’Imperia’s part into his actions. Further, there was no

evidence of remediation or likely engagement with the NMC as his regulator in the

future.

The panel bore in mind that the overarching objectives of the NMC are to protect,

promote and maintain the health, safety, and well-being of the public and patients, and

to uphold/protect the wider public interest, which includes promoting and maintaining

public confidence in the nursing and midwifery professions and upholding the proper

professional standards for members of those professions. The panel was concerned by

Mr D’Imperia’s lack of engagement with the NMC. Given his lack of cooperation with his

regulator and the absence of any insight, the panel determined that a finding of current

impairment on the grounds of public protection was necessary, and also required in the

public interest.

Having regard to all of the above, the panel was satisfied that Mr D’Imperia’s fitness to

practise is currently impaired.

36

Submissions on sanction: Ms Fleck invited the panel to impose a striking off order in this case. She submitted,

however, that the invitation to impose a particular sanction does not remove the need

for the panel to look at its powers according to Article 29 of the Order, and the panel

should consider each sanction in ascending order of its severity. She reminded the

panel that any sanction imposed should be proportionate and not punitive.

Ms Fleck informed the panel that, with regard to matters solely concerning language

impairment alone, the option of imposing a striking off order would not be open to it. She

submitted, however, that in this case, Mr D’Imperia’s fitness to practise has also been

found to be impaired as a result of his misconduct, both on the grounds of public

protection and also in the public interest. She submitted that there is strong public

interest in striking off a nurse where they are not prepared to either follow the direction

of or engage with the regulator. She submitted that, in this case, no useful purpose

would be served by the panel imposing a suspension order. She further submitted that,

ultimately, it is a matter for the panel to determine which sanction to impose, if any, in

this case.

Determination on sanction: The panel has considered this case and has decided to make a striking-off order. It

directs the registrar to strike Mr D’Imperia’s name off the register. The effect of this

order is that the NMC register will show that Mr D’Imperia’s name has been struck off.

In reaching this decision, the panel has had regard to all the evidence that has been

adduced in this case. The panel accepted the advice of the legal assessor. The panel

has borne in mind that any sanction imposed must be appropriate and proportionate

and, although not intended to be punitive in its effect, may have such consequences.

The panel had careful regard to the Sanctions Guidance published by the NMC. It

37

recognised that the decision on sanction is a matter for the panel, exercising its own

independent judgement.

The panel considered the aggravating and mitigating factors in this case. With regard to

Mr D’Imperia not having the necessary knowledge of the English language, it found the

following to be aggravating factors:

• The lack of engagement by Mr D’Imperia with colleagues in relation to

discussions regarding improving his knowledge of English

• The lack of evidence of remediation and resulting risk of repetition

• The lack of insight, namely a failure to recognise that he has communication

difficulties in respect of his knowledge of English

• The risk of harm to patients given Mr D’Imperia’s inability to communicate

effectively.

With regard to Mr D’Imperia’s misconduct, the panel found the following to be an

aggravating factor:

• The failure to take the IELTS test on multiple occasions means that there is an

ongoing risk of harm to patients.

The panel found no mitigating factors in relation to either the matter of language

impairment or misconduct.

The panel first considered whether to take no action but concluded that this would be

inappropriate in view of Mr D’Imperia’s breaches of the Code, his clinical shortcomings

arising from his communication difficulties, the lack of remediation with regard to this

and the resulting repeated risk of harm to patients. The panel decided that it would be

neither proportionate nor in the public interest to take no further action.

Next, in considering whether a caution order would be appropriate in the circumstances,

the panel took into account the NMC Sanctions Guidance, which states that a caution

order may be appropriate where ‘the case is at the lower end of the spectrum of

38

impaired fitness to practise and the panel wishes to mark that the behaviour was

unacceptable and must not happen again.’ The panel considered that Mr D’Imperia’s

misconduct was not at the lower end of the spectrum and that a caution order would be

inappropriate in view of the seriousness of the case. There are public protection

concerns arising from his not having the necessary knowledge of the English language

and his misconduct. The panel decided that it would be neither proportionate nor in the

public interest to impose a caution order where a registrant does not have the

necessary knowledge of English to practise safely and effectively.

The panel next considered whether placing conditions of practice on Mr D’Imperia’s

registration would be a sufficient and appropriate response. The panel is mindful that

any conditions imposed must be proportionate, measurable and workable. The panel

took into account the Sanctions Guidance. The panel found that in this case there are

“identifiable areas of the nurse or midwife’s practice in need of assessment and/or

retraining,” namely the assessment of Mr D’Imperia’s English language skills. However,

the panel took into account that the Sanctions Guidance states that the imposition of a

conditions of practice order may be appropriate where the registrant shows “potential

and willingness to respond positively to retraining.” The panel was mindful that Mr

D’Imperia demonstrated a lack of insight in that he did not acknowledge that there are

deficiencies in his ability to communicate effectively in English. Further, the panel

considered the misconduct found proved in this case. Mr D’Imperia had refused to take

the IELTS assessment on four occasions, when it had been offered to him at no cost

and in international locations. The panel also considered his lack of engagement with

the NMC as his regulator since March 2017. The panel was of the view that Mr

D’Imperia would be unlikely to comply with any conditions of practice placed on his

registration. He has made this clear in an email to his regulator on 27 March 2017:


1. I worked in UK for 11 months and I suffered racism, mobbing about my ward



39


3. I’m not interested to work in the UK.

Please don’t send me again mail about the Ielts exam.”

Furthermore, in the panel’s judgment, there are no practicable or workable conditions

that could be formulated, which would be appropriate to meet the public interest

considerations in this case arising from the misconduct.

The panel then went on to consider whether a suspension order would be an

appropriate sanction. The NMC Sanctions Guidance indicates that a suspension order

would be appropriate where (but not limited to):

• “a single instance of misconduct but where a lesser sanction is not sufficient

• no evidence of harmful deep-seated personality or attitudinal problems

• no evidence of repetition of behaviour since the incident

• the Committee is satisfied that the nurse or midwife has insight and does not

pose a significant risk of repeating behaviour

• …”

The factors that the panel took into account, in particular, are the lack of insight with

regard to Mr D’Imperia’s language impairment, demonstrated by his refusal to take the

IELTS assessment on multiple occasions. The panel bore in mind that while Mr

D’Imperia’s misconduct was limited to a single matter, he had refused to take the IELTS

test on multiple occasions. The panel also bore in mind that he had not engaged with

the regulator since his email to the NMC dated 27 March 2017.

The panel was of the view that Mr D’Imperia does display attitudinal problems and does

not wish to engage with his regulator. Further, the panel believed that there was little

likelihood that Mr D’Imperia would engage with his regulator in the future.

40

The panel took note of the following from the Sanctions Guidance with regard to the

imposition of a striking off order:

• “A serious departure from the relevant professional standards as set out in key

standards, guidance and advice”

• “Persistent lack of insight into seriousness of actions or consequences”

• “Can public confidence in the professions and the NMC be maintained if the

nurse or midwife is not removed from the register?”

The panel was of the view that Mr D’Imperia’s failure to comply with the direction set out

by the regulator, in respect of a key requirement to be able to communicate effectively

with colleagues and patients, was a serious departure from the relevant professional

standards as set out in the Code. The panel specifically had in mind paragraph 23 of

the Code. This was a multiple refusal over a 3 month period.

Since March 2017, Mr D’Imperia has failed to engage with these proceedings. The

panel was of the view that the onus of responsibility to demonstrate fitness to practise

lies with the registrant. Mr D’Imperia has not provided any evidence of remorse, insight

or remediation to this panel since the incidents.

The failure to follow the direction and show insight in respect of his failings means that if

Mr D’Imperia were allowed to practise, he would present a risk of harm to patients.

Further, the panel considered that the public interest would include a registrant’s

engaging with their regulator in order to be considered fit to practise safely and

effectively, in accordance with professional standards and the Code. In the absence of

this engagement, the panel was of the view that Mr D’Imperia’s conduct and current

attitude are fundamentally incompatible with his remaining on the register.

The panel noted that Mr D’Imperia had stated that he did not intend to work in the UK in

the future. Nevertheless, the panel was concerned that he has a UK PIN and he could

return to practise in the UK if he so chose. The panel was of the view that to allow him

41

to continue practising would put the public at risk, and would undermine public

confidence in the profession and in the NMC as a regulatory body.

Balancing all of these factors and after taking into account all the evidence before it

during this case, the panel determined that the appropriate and proportionate sanction

is that of a striking-off order. The panel has concluded that nothing short of this would

be sufficient in this case.

42

Determination on Interim Order The panel has considered the submissions made by Ms Fleck that an interim order

should be made on the grounds that it is necessary for the protection of the public and

is otherwise in the public interest.


The panel was satisfied that an interim suspension order is necessary for the protection

of the public 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 order. To do otherwise

would be incompatible with its earlier findings.

The period of this order is for 18 months to allow for the possibility of an appeal to be

made and determined.

If no appeal is made, then the interim order will be replaced by the striking-off order 28

days after Mr D’Imperia is sent the decision of this hearing in writing.

That concludes this determination.