Conduct and Competence Committee
Substantive Hearing
Nursing and Midwifery Council, 61 Aldwych London WC2B 4AE
08 January 2016
Name of Registrant: Mr Sachin Roy Bheekharry
NMC PIN: 08I0753E
Part(s) of the register: Registered Nurse Sub Part 1
Mental Health Nursing 9 September 2008
Area of Registered Address: England
Type of Case: Conviction
Panel Members: Alan Nisbett (Chair Lay member)
Wendy Warren (Registrant member)
Jane Thomson (Lay member)
Legal Assessor: John Bromley-Davenport QC
Panel Secretary: Helen Sarantopoulos
Nursing and Midwifery Council: Represented by James Edenborough,
Counsel, NMC Regulatory Legal Team
Mr Bheekharry: Present and represented by Ray Short of
UNISON
Facts proved: 1
Facts not proved: None
Fitness to practise: Impaired
Sanction: Suspension Order 4 months
Interim Order: Suspension Order 12 months
Page 1 of 14
Charge:
That you, whilst employed as a Registered Nurse by Oxford Health NHS Foundation
Trust:
1. On 4 July 2014, at Buckinghamshire Magistrates Court, were convicted of the
offence of Production of Controlled Drug Class B Cannabis, contrary to Section
4(2)(a) of the Misuse of Drugs Act 1971.
AND in light of the above, your fitness to practise is impaired by reason of your
conviction.
Determination on facts
At the outset of this hearing the charge was put to you and Mr Short, on your behalf,
informed the panel that you admitted the fact of the conviction as set out in charge 1.
Accordingly, the panel found charge 1 proved by your own admission.
Page 2 of 14
Determination on fitness to practise
Mr Bheekharry,
Having announced its findings, the panel then moved on to consider whether your
fitness to practise is currently impaired by reason of your conviction. It has had regard to
all the evidence adduced by the NMC and by you. The NMC has defined fitness to
practise as a registrants suitability to remain on the register unrestricted.
Background
The charges arose whilst you were employed as a Registered Nurse by Oxford Health
NHS Foundation Trust (the Trust) to work as a Band 5 Staff Nurse.
You were based on the Opal Ward at the Whiteleaf Centre, Health and Wellbeing
Campus, in Aylesbury, which is a 20 bed, mixed sex, rehabilitation ward and is part of a
rehabilitation and recovery-oriented service for people who experience a serious and
enduring mental illness.
On 25 April 2014 you were arrested for the production of a controlled drug, cannabis,
following the execution of a search warrant under the Misuse of Drugs Act.
On 20 June 2014 you were charged with the offence of Production of a Class B
Controlled Drug, contrary to Section 4 (2), Misuse of Drugs Act 1972 and bailed to
appear at Buckinghamshire Magistrates Court at Aylesbury on 4 July 2014.
On 4 July 2014 you appeared before Buckinghamshire Magistrates Court at Aylesbury
and pleaded guilty to those matters contained within the charge. You were convicted of
the offence as charged and bailed to return to the court on 13 August 2014 for
sentencing.
On 13 August 2014 you appeared at Buckinghamshire Magistrates Court and you were
sentenced to a 12 month Community Service Order (Unpaid Work Requirement), Costs
of 85.00 and a Victim Surcharge of 60.00.
Page 3 of 14
You self-referred the fact of the conviction to the NMC in a letter dated 30 June 2014 in
which you indicated that you had been arrested and charged with the offence of
cultivation of 15 cannabis plants contrary to Section 4(2), Misuse of Drugs Act 1971.
You have previously been the subject of two cautions in relation to the possession and
the supply of cannabis, in 1998 and 2003.
Mr Edenborough, on behalf of the NMC, asked the panel to have regard to your
admissions in relation to the conviction and that your fitness to practise is currently
impaired.
Mr Edenborough asked the panel to bear in mind that the conviction involved an illegal
controlled drug and contended that this would have an impact on the wider public
interest in maintaining confidence in the profession. He further contended that there was
an element of risk in relation to patient and public safety due to the fact that the drug
was cultivated for personal use which may have affected you in your performance at
work.
Mr Edenborough submitted that you have breached a fundamental tenet of the
profession, to uphold the laws of the country you are practising in.
Mr Edenborough invited the panel to find that Mr Bheekharrys fitness to practise is
impaired by reason of his conviction.
Mr Short, on your behalf, submitted that you accept that your fitness to practise is
currently impaired by reason of your conviction.
He submitted that you deeply regret the actions that have led to you being currently
impaired because of the wider public interest and the reputational risk to the profession
and the NMC. He asked the panel to bear in mind that you have engaged throughout
the NMC proceedings and that you did not resist the facts of the charge nor that you are
currently impaired.
Page 4 of 14
Mr Short contended that there is no risk in relation to public protection issues and that
no public protection issues have ever arisen in relation to your practice and the care of
patients.
The panel heard and accepted the advice of the legal assessor, which included a
reference to the judgment of Mrs Justice Cox which cites Dame Janet Smiths Fifth
Shipman Enquiry Report Council for Healthcare Regulatory Excellence v (1) Nursing
and Midwifery Council (2) Grant [2011] EWHC 927 (Admin).
Decision and reasons on current fitness to practise:
The panel went on to decide if, as a result of your conviction, your fitness to practise is
currently impaired.
The panel had regard to your reflective documents. The panel also had regard to your
admissions to the conviction and that your fitness to practise is impaired.
It considered that you have demonstrated a measure of remorse, insight and
remediation in that you have shown an understanding of the implications of your
conviction on the reputation of the profession. The panel understands that you have
stopped using cannabis and that you have accepted personal accountability for your
behaviour.
The panel considered it extremely unlikely that you would repeat such behaviour again.
It therefore accepted that there is a low risk of repetition.
However, the panel deemed your behaviour in relation to this charge to be a serious
departure from the conduct and standards expected of a nurse. The panel considered
that growing cannabis for personal use falls far below the standards of behaviour
expected of a registered nurse.
The panel also recognised the need to uphold the public interest and public confidence
in the profession.
Page 5 of 14
The panel also had regard to the question of whether a finding of no impairment would
undermine public confidence in the profession or undermine the maintenance of proper
standards. The panel considered that, in all the circumstances, it would, and that the
public would expect the panel to find you impaired. The panel has found that your
fitness to practise is impaired by reference to its obligation to uphold standards and
public trust and confidence in the profession itself, and the NMC as its regulator.
Further, the panel has determined that, by committing this offence, your actions have
brought the profession into disrepute.
In all the circumstances, the panel has determined that your fitness to practise is
currently impaired by reason of your conviction.
Page 6 of 14
Determination on sanction
Mr Bheekharry,
The panel has determined to make a suspension order for a period of four months.
In reaching this decision, the panel had regard to all the evidence presented in this
case. The panel had 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 (the Guidance). It recognised, however, that the decision on sanction is a
matter for the panel exercising its own independent judgement on the specific facts and
circumstances of this case.
The panel had regard to the submissions of Mr Edenborough, on behalf of the NMC, the
submissions of Mr Short, on your behalf and to your oral evidence.
You told the panel in your evidence that you became a nurse because nursing has
always been part of your family [PRIVATE].
You informed the panel that you have been working with patients in a non-nursing
capacity since March 1999 when you started working in a challenging
behaviour/disabilities unit where you learnt a wide range of skills in personal care. You
said that you then worked with less challenging patients between August 1999 and
September 2005.
You said that whilst you were working with the NHS you were seconded to study
nursing at the University of Bedfordshire and referred the panel to testimonials from
nursing colleagues during your preceptorship and whilst working on the Opal Ward.
You said that after you were arrested you self-referred to the NMC two days after you
were charged and informed your employer on the same day. You said that you were
guided by the Code (The code: Standards of conduct, performance and ethics for
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nurses and midwives 2008). You said that you also pleaded guilty to the criminal
charge.
You said that you have been using cannabis since your late teens and that you decided
to start cultivating cannabis in recent years after you felt it became more dangerous to
purchase the drug. You said that you grew cannabis for your own personal use and that
you only used cannabis whilst on annual leave or during long periods of days off. You
said that you never went to work under the influence of cannabis. You said that you kept
your recreational use of cannabis secret from your colleagues and that you did not think
of the illegal aspect of the use of cannabis and how that might undermine a fundamental
tenet of the Code. You said that you realised that what you were doing was wrong but
when you were cultivating the plants you did not think about it. You accepted that
cannabis can be harmful but that there was also a medicinal use for cannabis.
You said that this case has highlighted for you that the actions of a nurse outside work
have an impact on the reputation of the profession and that society would be
disappointed and shocked to hear a nurse had acted this way.
You said that your health has improved significantly since you were dismissed from your
job at the Trust and that you have been going to gym, swimming and walking your dog.
You said that you have given up smoking tobacco and have found nicotine replacement
therapy helpful. [PRIVATE]
You said that you have not used cannabis since you were arrested in April 2014. You
said that you found it easy to stop using cannabis as the police took everything when
they raided you.
[PRIVATE]
You said that you would not use cannabis again as you do not want trouble with the
police and that your arrest was a wake-up call. You said that if you were to face similar
issues again you would stick to nicotine replacement therapy. You said that there was
no long term danger of use.
Page 8 of 14
You said that you would love to keep working as a staff nurse to help people. You said
that you missed working in a hospital, and that it was like a second home. You said that
you feel like you have been mourning a death as it was such a big part of your life.
You said that if you were employed as a nurse again you would seek the support of
your colleagues. You said that you would also undertake mandatory training and speak
to the NMC about revalidation and developing your practice. You said that your intention
was to go back to mental health nursing. You said that you are a very good nurse and
that you make sure all members of staff are being cared for.
You said that you completed the community service, worked hard and that the charity
shop workers wanted you stay on working. You said that you did extra work to help out
at the charity shop. You said that you are not currently employed and are seeking work.
Mr Edenborough, on behalf of the NMC, asked the panel to bear in mind the Guidance
when deciding on the appropriate sanction, taking into account the relevant issues that
have arisen in this case.
He submitted that a conditions of practice order, whilst proportionate, might not be
appropriate given the panels impairment determination. He asked the panel to bear in
mind that this matter involves criminality and that the charge is a serious one which has
had a real impact on the reputation of the profession. He invited the panel to give these
matters due weight and submitted that the panel may wish to mark the seriousness of
the conviction at this stage.
Bearing in mind the seriousness of the conviction, notwithstanding the mitigation
provided by you, Mr Edenborough submitted that it is likely to have an affect on the
reputation of the profession. He contended that the public may be caused concern to
hear a registered nurse has cultivated cannabis and asked the panel to bear in mind the
reputation of the profession when considering the type and length of any sanction.
Mr Short, on your behalf, asked the panel to bear in mind that you have been honest
and that you self-referred at the earliest stage and pleaded guilty at the earliest stage.
He submitted that you have remediated and turned your life around with minimum of
Page 9 of 14
risk of repetition. He accepted that the reputation of the profession may be damaged if
no action was taken.
He asked the panel to consider that you are a good nurse and that a caution order was
the proportionate sanction. He submitted that, whilst conditions of practice might be
difficult to formulate in this case, you would be willing to comply with a conditions of
practice order.
Mr Short asked the panel to bear in mind that you have engaged with and taken these
proceedings seriously when considering sanction.
The panel heard and accepted the advice of the legal assessor.
Decision and reasons on sanction:
The panel considered the aggravating and mitigating features in this case.
In relation to aggravating features, the panel noted that:
your behaviour involved a breach of the fundamental tenets of maintaining the
law of the land and has brought the profession into disrepute; and that
you appear to have an equivocal attitude to the growing and use of cannabis.
In relation to mitigating features, the panel considered that:
you have self-referred to the NMC, have fully engaged with the NMC process,
attending this public hearing, giving oral evidence and being questioned under
cross-examination;
you have made full admissions as to the facts, at an early stage, both to the
police and your employer;
you have had an otherwise successful nursing career;
you have completed your sentence;
Page 10 of 14
you have taken steps to remediate your actions in that you have given up
cannabis; and
you have addressed personal and health stressors at the time of the conviction.
The panel considered the available sanctions in ascending order, considering the least
restrictive first.
The panel first considered whether to take no action but concluded that it would not be
in the public interest to do so. You have been convicted of a serious offence involving
the cultivation of cannabis. The panel noted paragraph 61 of the Guidance which states
that: panels will usually need to take action to secure patient safety, to secure public
trust and confidence in the profession, or to declare and uphold proper standards of
conduct and behaviour. The panel determined that it would not be in the wider public
interest to take no action. A conviction of this nature requires a sanction.
In considering a caution order, the panel took into account the Guidance, which states
that a caution order may be appropriate where the case is at the lower end of the
spectrum of impaired fitness to practise and the panel wishes to mark that the behaviour
was unacceptable and must not happen again. The panel determined that, given your
breach of a fundamental tenet of the profession, your case was not at the lower end of
the spectrum of impaired fitness to practise. In addition, a caution order would not be
proportionate, as it would not be adequate to satisfy the public interest in this case.
The panel then considered a conditions of practice order. The panel was mindful that
any conditions imposed must be relevant, proportionate, measurable and workable. The
panel noted that you are willing to comply with a conditions of practice order. The
imposition of a conditions of practice order would not, in the panels judgement,
adequately address the public interest considerations, namely declaring and upholding
proper standards so as to maintain public confidence in the profession and in the NMC
as its regulator. A conditions of practice order would also be inappropriate as the
conviction does not relate to your clinical practice.
Page 11 of 14
In its consideration of a suspension order, the panel bore in mind paragraphs 69-71 of
the Guidance and concluded that the following paragraphs were of particular relevance
to this case:
69.1 Does the seriousness of the case require temporary removal from the
register?
69.2 Will a period of suspension be sufficient to protect patients and the public
interest?
[]
71 This sanction may be appropriate when some or all of the following factors are
apparent (this list is not exhaustive):
71.1 A single instance of misconduct but where a lesser sanction is not sufficient.
71.2 The 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.
71.3 No evidence of harmful deep-seated personality or attitudinal problems.
71.4 No evidence of repetition of behaviour since the incident.
71.5 The panel is satisfied that the nurse or midwife has insight and does not pose
a significant risk of repeating behaviour
The panel took into consideration that you say you ceased cultivating and using
cannabis in April 2014. It considered that you have expressed genuine remorse for your
conviction. The panel has determined that you have demonstrated some insight and
that you are unlikely to repeat your behaviour. The panel determined that, having regard
to all the circumstances of this case, the appropriate and proportionate sanction is that
of a suspension order. The panel further determined that a period of suspension would
be sufficient to address the public interest considerations in this case. The panel was
confident that maintaining the publics trust in the profession does not require the
imposition of a more restrictive sanction in the particular circumstances of this case.
Having determined that a suspension order is the appropriate sanction, the panel next
considered the duration of the order. The panel determined that a suspension order for
Page 12 of 14
a four month period would adequately mark the seriousness of your conviction. Further,
in the light of the remediation of your conviction and the minimal risk of repetition, this
four month period of suspension is sufficient to satisfy the public interest.
The panel bore in mind the hardship that such an order may cause you. It had no
evidence before it regarding this issue. However, any potential hardship was
outweighed by the public interest in this case, marking the importance of maintaining
public confidence in the profession, and sending to the public and the profession a clear
message about the standards of behaviour required of a registered nurse.
Before confirming this decision, the panel went on to consider whether a striking-off
order was appropriate and proportionate. In the light of the fact that you have ceased
cultivating and using cannabis since April 2014 without repetition of the conviction, the
panel took into account that there was a public interest in the retention of an
experienced and motivated nurse in the profession. The panel was also of the view that
the conviction in this case was not fundamentally incompatible with ongoing registration,
and that public confidence in the profession and the NMC could be sustained if you
were not permanently removed from the register.
At the end of the period of suspension, another panel will review the order. At the review
hearing the panel may revoke the order, or it may confirm the order, or it may replace
the order with any other order.
The panel considered that a future panel reviewing this sanction may be assisted by the
following:
a further reflective statement, focusing in particular on the impact of your
conviction on the public, patients and colleagues;
any up-to-date character references and testimonials, relating to your current
circumstances, whether from paid or unpaid employment; and
any evidence of recent training courses or research related to nursing
undertaken by you.
Page 13 of 14
Determination on interim order
Mr Bheekharry,
The panel considered the submissions made by Mr Edenborough, on behalf of the
NMC, that an interim suspension order should be made on the grounds that it is in the
public interest for the same reasons as those set out in the determination on sanction.
He submitted that the period of the interim suspension order should be 18 months to
cover the period of an appeal.
Mr Short, on your behalf, did not object to the imposition of an interim suspension order.
The panel heard and accepted the advice of the legal assessor.
The panel was satisfied that an interim suspension order is in the public interest. In
reaching its decision to impose an interim suspension order, the panel had regard to its
reasons for imposing a substantive suspension order. To do otherwise would be
inconsistent with its earlier findings.
The panel determined that a period of 12 months is appropriate and proportionate in this
case.
If no appeal is made, then the interim suspension order will be replaced by the
substantive suspension order 28 days after you are sent the decision of this hearing in
writing.
That concludes this determination.
Page 14 of 14
