Conduct and Competence Committee
Substantive Meeting
20 January 2016
Nursing and Midwifery Council 2 Stratford Place, Montfichet Road, London, E20 1EJ
Name of Registrant Nurse:Andrew Martin Mackay
NMC PIN:10I0108S
Part(s) of the register:Registered Nurse – Sub Part 1
Mental Health – December 2013
Area of Registered Address: Scotland
Type of Case: Conviction
Panel Members: Pamela Mansell (Chair, lay member)
Sue Wadham (Lay member)
Dean Morris (Registrant member)
Legal Assessor: Andrew Reid
Panel Secretary: Ruth Bass
Facts proved: (a) and (b) by way of admission
Facts not proved: None
Fitness to practise: Currently impaired
Sanction: Strike off
Interim Order: Interim suspension order – 18 months
Decision on Service of Notice of Meeting:
Notice of this meeting was sent to Mr Mackayon 14 December 2015 by recorded delivery to his address on the register.The panel was satisfied that notice had been served, as advised by the legal assessor, in compliance and accordance with Rules 11 A and 34 of The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended 2012) (The Rules).
11A.—(1) Where a meeting is to be held in accordance with rule 10(3), the Conduct and Competence Committee or the Health Committee shall send notice of the meeting to the registrant no later than 28 days before the date the meeting is to be held.
34.—(1) Any notice of [meeting] required to be served upon the registrant shall be delivered
by sending it by a postal service or other delivery service in which delivery or receipt is recorded to,
(a)her address in the register
Details of charge:
That you, a registered nurse were convicted on 10 March 2015 at Inverness Sheriff Court of:
(a)possessing indecent photograph of children contrary to s. 52A (1) of the Civic Government (Scotland) Act 1982 (Sexual aggravator); and
(b)possessing of extreme pornographic image contrary to s. 51A (1) of the Civic Government (Scotland) Act 1982;
AND, in light of the above, your fitness to practise is impaired by reason of your conviction/s.
Decision on facts and reasons:
In reaching its decisions on the facts, the panel had regard to Mr Mackay’s response dated 29 August 2015 to the charges. It noted his admission to charges (a) and (b).
Charges (a) and (b) were therefore found proved by way of admission.
Mr Mackay, a Registered Nurse, was arrested following an executed search warrant at his home on 16 April 2014. During the search, the police seized various computer devices which included two laptops. 57 indecent images of children were recovered from one of the laptops and five indecent videos of children. The videos were created between 27 August 2012 and 10 September 2012. The category of the indecent images and videos ranged from Levels 1 – 5.
414 indecent images of children were recovered from the second laptop. There were also 9 indecent video fragments of children. Again the category of the indecent imagesand videos ranged from Level 1 – 5.
Mr Mackay was convicted on 10 March 2015 for the possession of indecent photographs of children and for possessing extreme pornographic images, both of which he admitted. Mr Mackay was sentenced on 17 April 2015 by Sheriff Nielson to ‘an unpaid work requirement to carry out 300 hours of unpaid work within one year…an offender supervision requirement for three years’…and a ‘programme requirement to carry out the Moving Forward: Making Changes programme…’ Mr Mackay was also placed on the Sex Offenders Register for a period of 3 years and is barred from regulated work with children and adults as defined in Schedules 2 and 3 to the Protection of Vulnerable Groups (Scotland) Act 2007.
Decision on route of impairment – conviction:
Having found the facts proved by way of admission, the panel recognised that it should now engage in atwo-step process: first itshouldconsider whether, on the facts found proved, the conviction route to impairment had been established; only if it concluded that this route had been established should it go onto the second step and consider whether Mr Mackay’s fitness to practise is impaired by reason of his convictions.
In order to constitute a conviction for impairment purposes, in accordance with the case of Royal College of Veterinary Surgeons v Samuel [2014] UK PC 13, the panel must be satisfied that the convictions are relevant to the issue of Mr Mackay’s fitness to practise.The panel had no doubt that any conviction for sexual misconduct would be highly relevant to the issue of fitness topractise of a Registered Nurse.
Accordingly, the panel moved on to the second step and considered whether Mr Mackay’s fitness to practise is impaired by reason of his convictions.
Nurses occupy a position of privilege and trust in society and are expected at all times to be professional and to maintain professional boundaries. Patients and their families must be able to trust nurses with their lives and the lives of their loved ones. To justify that trust, nurses must be honest and open and act with integrity. 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 Grant. She said:
‘In determining whether a practitioner’s fitness to practise is impaired…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 also endorsed the impairment test set out by Dame Janet Smith in her fifth Shipman report as follows:
“Do our findings of fact in respect of the [registrant’s]…conviction[s]…show that his/her fitness to practise is impaired in the sense that s/he:
- 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
- has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or
- 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
- has in the past acted dishonestly and/or is liable to act dishonestly in the future”
The panel first considered whether Mr Mackay’s fitness to practise had been impaired by reason of his convictions. It had no doubt that those convictions breached fundamental tenets of theprofession to an extent that would bring the profession into disrepute. In particular it noted the preamble to The Code: Standards of conduct, performance and ethics for nurses and midwives 2008 (‘the Code’)as follows:-
The people in your care must be able to trust you with their health and wellbeing
To justify that trust, you must:
• make the care of people your first concern, treating them as individuals and respecting their dignity
…act with integrity and uphold the reputation of your profession
...You must always act lawfully, whether those laws relate to your professional practice or personal life.
The panel had regard to the fact that Mr Mackay had qualified as a nurse less than six months prior to having being found to be accessing indecent images. It found Mr Mackay’s behaviour to be directly relevant to his role as a Registered Nurse, and extremely concerning,given that he would have been in a position of power over vulnerable patients.
The panel did not have the benefit of any evidence of insight or remorse on Mr Mackay’s part; nor did it have the benefit of any evidence to suggest that he now understands the impact his behaviour would have had on the children who had been sexually abused in order to provide the images he viewed, or the other children who would have been put at risk by his accessing the websites in question. Further, the panel did not have the benefit of any evidence to suggest that Mr Mackay now had any understanding of the impact his behaviour would have on the families of the children concerned, his own colleagues, and the reputation of the nursing profession itself.
The panel had careful regard to the transcript of proceedings dated 10 March 2015 and noted Mr Mackay is reported to have told the police that ‘it was merely his morbid curiosity that made him search and view for indecent images of children’ and that ‘he elected to delete [the videos] prior to the download process being completed.’ The panel considered that, in this regard, Mr Mackay had sought to justify and minimise his behaviour. Inany event, the panel noted some of the search terms used, such as ‘paedo’ and ‘bestiality’. It found that by using such terms Mr Mackay must have formed a clear intent to view such images. It also had regard to the protracted period over which the images were viewed, namely 2 years, including a period when he was training as a nurse.
For all the reasons set out above, the panel had no doubt that Mr Mackay’s fitness to practise had been impaired by reason of his convictions.
The panel next considered whether Mr Mackay’s fitness to practise remains impaired by reason of his convictions. It had particular regard to the issues of remediation and insight. The panel considered that Mr Mackay’s behaviour, in accessing these type of images, is extremely difficult to remediate. There has been no new information forthcoming from Mr Mackay other than his acceptance of his convictions and his acceptance that his fitness to practise is currently impaired. The panel recognised that the question of impairment is a matter for its own independent judgement and does not require to be proved by the NMC or disproved by Mr Mackay.
The panel had regard to the course that Mr Mackay was sentenced to attend and noted that it had no informationbefore it in relation to his attendance or performance on that course. The panel also noted that the sentence of the court included a 3 year supervision order which has not yet been completed and in respect of which the panel has received no information in terms of how Mr Mackay may or may not have cooperated. As a consequence, the panel was unable to conclude that Mr Mackay is not liable to repeat matters of the kind that led to his convictions.
Accordingly the panel determined that a finding of current impairment is necessary on the grounds of public protection.
The panel then went on to ask itself 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 circumstances of this case. This case involves multiple viewings of extremely serious child pornography. The panel had no doubt that the need tomaintainconfidence in the nursing profession and to uphold proper standards and behaviour would be undermined if a finding of current impairment was not made.
Accordingly, the panel determined that Mr Mackay’s fitness to practise is impaired by reason of his convictions, both on the grounds of public protection and in the wider public interest.
Determination on sanction:
Having found that Mr Mackay’s fitness to practise is impaired by reason of his convictions the panel went on to consider what, if any, sanction to impose.
The panel has considered this case very carefully and has decided to make a striking off order. It directs the registrar to strike Mr Mackay off the register. The effect of this order is that the NMC register will show that Mr Mackay has been struck off the register.
In reaching this decision, the panel has had regard to all the evidence that has been put before it in this case. The panel 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 in its effect, may have such consequences. The panel had careful regard to the Indicative Sanctions Guidance (ISG) published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement.
The panel carefully considered the aggravating and mitigating factors in Mr Mackay’s case. It considered that they could be summarised as follows:
Aggravating factors:
- Sexual offences against children
- High number of Level 5 category images and videos
- Clear intention to access material of children being sexually abused
- Breach of trust
Mitigating factors:
- Admitted to charges, at Court, which led to his convictions
- Has engaged with the NMC to the extent that he admitted the charges before this panel
The panel noted the following paragraphs of the ISG:
44Sexual offences include accessing, viewing, or other involvement in child pornography, which involves the abuse or exploitation of a child. These types of offences gravely undermine patients’ and the public’s trust in the profession and seriously impact on the reputation of the professions.
46The criminal courts identify degrees of seriousness in relation to child pornography offences. However, panels will wish to give careful regard to the proposition that any conviction for child pornography is a matter of serious concern because it involves such a fundamental breach of trust and damages the reputation of the professions.
47In all cases of serious sexual misconduct, it will be highly likely that the only proportionate sanction will be a striking-off order. If panels decide to impose a sanction other than a striking-off order, then they will need to be particularly careful in explaining clearly and fully the reasons why they made such a determination, so that it can be understood by those who have not heard all of the evidence in the case.
51In 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.”
Mr Mackay has been convicted of serious criminal offences and has yet to satisfactorily complete his sentence, part of which requires him to undergo offender supervision for a period of three years. He is also prohibited from working with adults and children for the same period. The panel recognised that in accordance with the case of Fleischmann, thesanctions available to it, as set out in Article 29 of the Nursing and Midwifery Order 2001 as amended, are limited to imposing a suspension order or a striking off order.Even if this were not the case, the panel considered this matter is too serious to be dealt with by no order, a caution order or a conditions of practice order.
Accordingly the panel first considered whether a suspension order would be an appropriate sanction in this case. Paragraph 71 of the ISG indicates that a suspension order would be appropriate where (but not limited to):
71.2The misconduct is not fundamentally incompatible with continuing to be a registered nurse or midwife in that the public interest can be satisfied by a less severe outcome than permanent removal from the register.
71.3No evidence of harmful deep-seated personality or attitudinal problems.
71.5 The panel is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour.
Mr Mackay’s conduct was a very serious and significant departure from the standards expected of a registered nurse. The panel considered that the serious breach of fundamental tenets of the profession evidenced by Mr Mackay’s actions is fundamentally incompatible with his remaining on the register.
The panel has taken into account the mitigating factorslisted above.However, it determined that in this case a suspension order would not be a sufficient, appropriate or proportionate sanction. The panel is of the view that these charges are too serious to permit such a sanction.
Finally, in considering a striking-off order, the panel took note of the following paragraphs of the ISG:
74.1 Is striking-off the only sanction which will be sufficient to protect the public interest?
74.2 Is the seriousness of the case incompatible with ongoing registration.
74.3 Can public confidence in the professions and the NMC be sustained if the nurse or midwife is not removed from the register?
75. This sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a registered professional…
75.1 Serious departure from the relevant professional standards as set out in key standards, guidance and advice
75.2 Doing harm to others or behaving in such a way that could foreseeably result in harm to others, particularly patients or other people the nurse or midwife comes into contact with in a professional capacity, either deliberately, recklessly, negligently or through incompetence, particularly where there is a continuing risk to patients.
Mr Mackay’s actions were very serious and significant departures from the standards expected of a Registered Nurse, and are fundamentally incompatible with hisremaining on the register. The panel was of the view that the findings in this particular case demonstrate that Mr Mackay’s actions were so serious that to allow him to continue practising 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. Having regard to the matters it identified, in particular the effect of Mr Mackay’s actions in bringing the profession into disrepute, the panel has concluded that nothing short of this would be sufficient in this case.