The applicant referred to the statement in Stirling v Legal Services Commissioner[2] to the effect that ordinarily, a Court or Tribunal should stipulate a penalty for each count or charged conduct. However, in some disciplinary proceedings-
[2]
the charged conduct is constituted by a course of behaviour as opposed to a set of separate events. In these circumstances where the facts of the case are so inextricably interwoven so as to make it difficult to meet a clear standard of prescription, a global penalty may be applied.
[3]
Ms Gardner, on behalf of the applicant, stated that it made no submission as to whether a global penalty, or separate penalties should apply in this case. However, its contention as to disposition, namely that Mr Singh's registration should be cancelled, with no application being able to be made for one - two years, clearly assumed that a global penalty should be imposed.
Nor did the respondent make any definitive submission as to the way in which penalty should be imposed here. Ms Riddell pointed to the distinction between the findings made relating to Complainant 1 (professional misconduct within (a) of the definition only) on the one hand, and Complainants 2 and 3 on the other (professional misconduct within the meaning of both (a) and (c) of the definition) on the other. However, she submitted that various permutations were equally open to the Tribunal, including separate penalties in relation to each of the three sets of complaints, separate penalties in relation to Complainant 1 on the one hand and Complaints 2 and 3 on the other, separate penalties for Complaint 3 on the one hand and Complainants 1 and 2 on the other, or a global penalty in relation to all findings.
The Tribunal concludes that a global penalty covering all findings should be imposed in this case. In the Tribunal's view, for these purposes, the conduct which Mr Singh has been found to have engaged in constituted a 'course of behaviour'. The conduct occurred over a relatively short period, and there are many common features between the actions Mr Singh was found to have engaged in. These include that they all comprised opportunistic physical conduct of a sexual nature or sexualised verbal conduct involving vulnerable young female mental health patients in an acute mental health ward.
In the Tribunal's view, it would be artificial to impose separate penalties in relation to the conduct relating to each of the three complainants, particularly given the focus in this jurisdiction on the protection of the public.
As the decision in Legal Services Commissioner v Burgess[3] demonstrates, different episodes of similar conduct involving different persons (in that case, clients of the lawyer) plus a separate failure to abide by an undertaking, could nevertheless be appropriate for a global penalty rather than on an individual charge basis.[4]
[4]
In considering the determinations which should be imposed, our primary concern is the protection of the public, and the maintenance of professional standards of the nursing profession in the eyes of the public. [5] While our function is not to impose a 'punishment', specific and general deterrence[6] are both legitimate considerations[7].
Also relevant are insight, remorse and rehabilitation, character and prior record, delay and family circumstances.[8]
Although the conduct which Mr Singh was found to have engaged in was not in the most heinous category of sexual misbehaviour it was nonetheless serious. It is obviously unacceptable for a male nurse to engage in hugging, kissing and touching the breasts of female patients. Similarly, the non-physical conduct in the form of sexualised remarks, which were clearly associated with the physical conduct, is unacceptable. This conduct is more serious when the persons involved are patients in an acute mental health unit, and so are particularly vulnerable. One of the patients, Complainant 2, was an involuntary patient. The conduct involved an abuse of the trust which is placed in nurses. It was clear from the evidence of the complainants that their faith in the hospital/heath care system and the nursing profession was undermined by what they experienced.
Both specific and general deterrence are significant factors here. In terms of specific deterrence, Mr Singh denied that any of the conduct took place, and in the circumstances of this case, there is little that can be said in his favour in terms of demonstrating remorse, or having taken steps to ensure the conduct does not occur again.
In terms of general deterrence, the seriousness of the breach of trust and abuse of power here, suggests that a significant sanction is required.
On behalf of Mr Singh it was submitted that the conduct should be seen in the context of his struggle to make his way in a new country, his homesickness, loneliness and lack of intimate companionship. As a result of the Tribunal's findings he has lost his position at the clinic where he had been working (in the context of adverse publicity) and is now working outside nursing. He is still responsible for providing for his wife and young child. The adverse impacts of this case on his reputation and family relationships will clearly have a significant deterrent effect on him.
There have been no other allegations made in relation to the approximately four years prior to the first incident the subject of this hearing in August 2010, nor in relation to the three and a half year period since the last incident, in January 2011. We were also advised that in the latter period Mr Singh was promoted to the level of Associate Nurse Unit Manager.
We also take into account the references provided on Mr Singh's behalf. These were however provided by his friends, and former employer,[9] before the findings were handed down and no additional character evidence was provided at the penalty hearing.
In relation to delay, it is unfortunate that these allegations took two and a half years to come to the Tribunal. While the matter was complicated by the volume and complexity of the evidence, and Mr Singh was overseas for a six month period during this time, nevertheless, the delays in bringing the matter on have not been fully explained. In these circumstances the fact that Mr Singh has had this matter hanging over his head for so long is a factor to be taken into account.[10] This is so notwithstanding that the delay has in effect allowed him to continue to work for a longer period.
Weighing up the above considerations, we conclude that Mr Singh's registration must be cancelled. Suspension is not appropriate. In particular, the finding that he is not a fit and proper person to be registered prompts this determination. In circumstances where there is no indication that Mr Singh has come to terms with the implications of his conduct, it would not be appropriate to impose a sanction which assumes that after a given period, it would be safe, in terms of protection of the public, to allow him to resume practice.[11]
The role of a mental health nurse necessarily involves being alone with patients in their rooms and other places. The actions Mr Singh has engaged in - opportunistic non-consensual physical contact of a sexual nature and associated sexualised verbal conduct towards three acute mental health patients - require that he demonstrate insight and remorse before the Board would be able to determine that it is consistent with the protection of patients for him to be registered again.
In considering the appropriate period of prohibition, parity with comparable cases is desirable, although each case depends on its own unique facts, which are enormously varied. The category of cases relating to admitted relationships with patients, often largely carried out outside the workplace, is not really comparable here. The period we have decided on is less than that which has frequently been imposed for conduct comprising more serious sexual assaults.
In the circumstances however, a significant period of prohibition from practising as a nurse is required. Weighing up the seriousness of the conduct, the need for specific and general deterrence (in the light of the lack of insight and the breaches of trust involved) together with the delay, and other mitigating factors, we determine that Mr Singh should not be able to apply to be registered again for a period of 20 months.