Part(s) of the register: RNMH, Registered Nurse (Sub Part 1) Mental Health April 2004

Transcription

1 Conduct and Competence Committee Substantive Hearing June 2017 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of Registrant Nurse: NMC PIN: Mr Mohammed Sinneh Kamara 00C2578E Part(s) of the register: RNMH, Registered Nurse (Sub Part 1) Mental Health April 2004 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Mr Kamara: Nursing and Midwifery Council: England Misconduct Jane Kivlin (Chair Registrant member) Anne Witherow (Registrant member) Paul Pharaoh (Lay member) Robin Ince Caroline Pringle Present and represented by Abbey Akinoshun, ERRAS Represented by Daniel Brown, counsel, NMC Regulatory Legal Team Facts proved: 2, 3, 5, 6(i), 6(ii) and 7 Facts proved by admission: 1, 4(i) and 4(ii) Facts not proved: 8 and 9 Fitness to practise: Sanction: Interim Order: Impaired Striking off order Interim suspension order (18 months) 1

2 Details of charge That you, a registered nurse: 1. In your application for the role of nurse at East London Foundation Trust (ELFT), dated 20 March 2009, you did not disclose your dismissal from South London and Maudsley NHS Foundation Trust (SLAM); [found proved by admission] 2. During your interview for the role of nurse at ELFT, on or around 31 March 2009, you did not disclose dismissal from SLAM; [found proved] 3. Your actions in charge 1 and/or 2 above were dishonest, in that you were attempting to conceal the fact that you had been dismissed from SLAM; [found proved] 4. In your application form dated 12 April 2010, for the role of band 6 Community Mental Health nurse at ELFT you: i) Did not disclose your dismissal from SLAM; [found proved by admission] ii) Stated that your reason for leaving SLAM was for a career break; [found proved by admission] 5. Your actions in charge 4(i) and/or 4(ii) were dishonest, in that you were attempting to conceal the fact that you had been dismissed from SLAM; [found proved] 6. Whilst working at ELFT you: i) Did not disclose that you were under investigation by the NMC from 5 July 2012; [found proved] 2

3 ii) Did not disclose that you had received a three year caution order from the NMCs Conduct and Competence Committee effective from 28 May 2013; [found proved] 7. Your actions in charge 6 above were dishonest, in that you were attempting to conceal the investigation as set out in 6(i) and/or the caution order as set out in 6(ii); [found proved] 8. During the disciplinary meetings with ELFT in respect of your failures to disclose the NMC proceedings and caution you provided false information, in that you: i. Stated you were on a 6 month career break in Sierra Leone until 12 December 2008, when in fact you were present at an appeal against your dismissal from SLAM on ; [found not proved] 9. Your actions as described in charge 8 above were dishonest in that you knew you were providing false information; [found not proved] AND in light of the above, your fitness to practise is impaired by reason of your misconduct. 3

4 Decision and reasons on application to admit written witness statement into evidence pursuant to Rule 31 The panel heard an application made by Mr Brown under Rule 31 of the Rules to allow the written statement of Mr 3 into evidence. Mr Brown submitted that, as Mr 3 s statement simply exhibits documents, the NMC did not intend to call him as a live witness. Mr Akinoshun indicated that he was aware of the NMC s decision not to call Mr 3 as a live witness and did not object to the application to have his written statement read into the record. The panel heard and accepted the legal assessor s advice on the issues it should take into consideration in respect of this application. This included that Rule 31 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. The panel gave the application in regard to Mr 3 serious consideration. The panel noted that Mr 3 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 him. The panel considered whether you would be disadvantaged by not having Mr 3 attend to give live evidence. The panel noted that the content of Mr 3 s statement was not in dispute and simply exhibited documents. It also took account of the fact that Mr Akinoshun, on your behalf, did not object to the application. In these circumstances, the panel came to the view that Mr 3 s statement was relevant and that it would be fair to accept it into evidence but would give what it deemed appropriate weight once the panel had heard and evaluated all the evidence before it. 4

5 Decision and reasons on application to hear evidence via WebEx pursuant to Rule 31 The panel heard an application made by Mr Brown for a witness, Ms 2, to give evidence via WebEx. He informed the panel that Ms 2 was originally going to give live evidence; however she has now been required to give evidence this week at an Employment Tribunal and is therefore not able to attend this hearing on either Monday or Tuesday. Mr Akinoshun, on your behalf, did not object to this application. The panel heard and accepted the legal assessor s advice on the issues it should take into consideration in respect of this application. This included that Rule 31 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. The panel decided to allow the application. It considered that the witness had a good reason for not attending this hearing and that it would cause no prejudice to you or the NMC to allow her to give evidence via WebEx. The panel noted that questions could still be put to the witness and the video link would allow the panel to observe her behaviour and demeanour which would assist it in testing her evidence and assessing her credibility. Accordingly, the panel decided to allow the application for Ms 2 to give evidence via WebEx. Decision and reasons on application under Rule 19 During your evidence at the facts stage Mr Akinoshun made a request that parts of the hearing of your case be held in private on the basis that proper exploration of your case involves your health and the health of a family member. 5

6 Mr Brown indicated that he supported the application to the extent that any reference to your health, or any family member s health should be heard in private. The legal assessor reminded the panel that while Rule 19 (1) provides, as a starting point, that hearings shall be conducted in public, Rule 19 (3) states that the panel may hold hearings partly or wholly in private if it is satisfied that this is justified by the interests of any party or by the public interest. Having heard that there will be reference to your health and a family member s health, the panel determined to hold such parts of the hearing in private. The panel determined to rule on whether or not to go into private session in connection with your health and a family member s health as and when such issues were raised. Background You were referred to the NMC on 18 December 2015 by East London NHS Foundation Trust ( ELFT ). You had previously been employed by South London and Maudsley NHS Foundation Trust ( SLAM ) from 24 May However, you were dismissed by SLAM on 25 June 2008 for gross misconduct. You appealed against your dismissal from SLAM but the decision to dismiss you was upheld. You were informed of this by letter dated 26 November You also brought a claim of unfair dismissal against SLAM in the Employment Tribunal. This claim was heard from April 2009 and the Tribunal held that you had not been unfairly dismissed. On 20 March 2009 you applied for a job as a bank nurse working for ELFT. It is alleged that, on the application form, you mislead ELFT by indicating that you were still employed by SLAM and had not been dismissed. It is further alleged that you failed to disclose this information during your interview for this role. Your application was successful and you started working for ELFT as a bank nurse. 6

7 In April 2010 you applied for a full time role at ELFT as a band 6 Community Mental Health Nurse. It is alleged that you again failed to disclose that you had been dismissed by SLAM on your application form for this position. On 4 April 2011 you were convicted of drink driving and were subsequently referred to the NMC by the police. The NMC investigated this matter and, on 22 April 2013, a panel of the Conduct and Competence Committee imposed a 3 year caution order upon your registration, effective from 28 May It is alleged that you failed to disclose the fact of the NMC investigation and the resulting three year caution order to ELFT and that this failure was dishonest. In 2014 ELFT became aware of the NMC investigation and resulting caution order and you were subject to local disciplinary meetings. During these meetings you allegedly stated that you were on a 6 month career break in Sierra Leone until 12 December However it is alleged that you provided this information falsely and dishonestly in that you were in fact present at an appeal against your dismissal from SLAM on 16 October 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 Mr Brown, on behalf of the NMC and those made by Mr Akinoshun on your behalf. The panel accepted the advice of the legal assessor. This included reference to Twinsectra Ltd v Yardley [2002] UKHL 12 and the test of dishonesty set out in this case. He further advised the panel on the appropriate approach to adopt when considering what weight to attach to hearsay evidence. 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 was satisfied that it was more likely than not that the incidents occurred as alleged. 7

8 The panel heard live oral evidence from Ms 1, HR Advisor at ELFT, called on behalf of the NMC. It also heard evidence via WebEx from Ms 2, Head of Employee Relations at SLAM. The written statement of Mr 3, NMC Case Officer, was read into the record by Mr Brown. Ms 1 gave evidence regarding the HR policies and procedures in place at ELFT. She had no direct contact with you and her involvement in this case was limited to reviewing the information available in your HR records. The panel found her evidence to be clear. She did not attempt to speculate or speak outside of her direct knowledge and readily admitted when she was unsure of information. For these reasons the panel found her to be a credible and reliable witness, although it acknowledged that she was unable to offer many details regarding your case, given her limited involvement. Ms 2 gave evidence that most of the documentation relating to your employment at SLAM had been destroyed as you had left the Trust over six years ago. Her evidence was unchallenged and, as such, the panel had no reason to doubt her credibility, although it again acknowledged the limited scope of her evidence in relation to the charges. The panel also heard evidence from you under oath. You outlined your career history for the panel. You explained that you had previously had a career in academia in Sierra Leone before studying in Germany and then moving to the UK, where you re-trained as a nurse. You qualified in 2004, having completed your training at ELFT. You then took up a position at SLAM. You told the panel that, in April 2008, you were accused of allegations which ultimately led to a disciplinary hearing following which you were summarily dismissed for gross misconduct. You were informed of this by letter dated 24 June You appealed this decision but, on 26 November 2008, you were informed that your appeal had been 8

9 unsuccessful and the decision to dismiss you was upheld. However, the appeal panel did conclude that you had been guilty only of misconduct, not gross misconduct, and therefore reinstated your rights to payment in lieu of notice. You then filed a claim for unfair dismissal in the Employment Tribunal which was heard from April The tribunal held that you had not been unfairly dismissed. You told the panel that you thought that, whilst you had appeals outstanding, the dismissal would not take effect and you still had an employment relationship with SLAM. You said that you now understood that not to be the case but, at the time, you were naïve and had limited knowledge of the process. In relation to charges 6 and 7, you gave evidence that you assumed ELFT were aware of the referral, because you had originally thought it was ELFT that had referred you. Further, when requested, you had provided details of your line manager, Ms 4, to the NMC and therefore assumed that the NMC would have notified her. You told the panel that you discovered this was not the case on 5 February 2013, when you had to request time off from work to attend a medical examination as part of the NMC investigation. You were then on annual leave from 13 April 2013 to 11 May 2013, during which time you returned to Sierra Leone to [PRIVATE]. On your return to the UK you said that you just wanted to focus on getting back to work and therefore did not open the letters which had been delivered in your absence. You were therefore unaware of the NMC Conduct and Competence Committee s decision to impose a 3 year caution order on your registration, notification of which had been sent to you by the NMC s letter dated 29 April The panel found you to be an emphatic witness but did not consider your evidence to be wholly reliable. You gave very lengthy answers but they sometimes lacked the details and depth that was required. Further, although your explanation for your actions was consistent, namely that you believed you still had an ongoing employment relationship with SLAM until the appeal process had been completed, the panel was of the view that you maintained the same explanation so persistently and tenaciously, even when it did 9

10 not explain the charges facing you, that this somewhat undermined your credibility and reliability as a witness. At the start of this hearing you admitted charges 1 and 4 in their entirety; 1. In your application for the role of nurse at East London Foundation Trust (ELFT), dated 20 March 2009, you did not disclose your dismissal from South London and Maudsley NHS Foundation Trust (SLAM); 4. In your application form dated 12 April 2010, for the role of band 6 Community Mental Health nurse at ELFT you: i) Did not disclose your dismissal from SLAM; ii) Stated that your reason for leaving SLAM was for a career break; These were therefore announced as proved. The panel then went on to consider the remaining charges. The panel considered each charge and made the following findings: 2. During your interview for the role of nurse at ELFT, on or around 31 March 2009, you did not disclose dismissal from SLAM This charge is found proved. In reaching this decision, the panel took account of your evidence and the evidence of Ms 1. You told the panel that the interview at ELFT on 31 March 2009 was focused on your nursing skills, knowledge and experience and you were not asked about your reasons for leaving SLAM. You told the panel that, had you been directly asked, you would have been honest, but you were not asked the question. Ms 1 confirmed that it 10

11 was not usual practice to ask interviewees if they had been dismissed from previous employment unless there were issues disclosed on their application form which prompted further exploration at interview. Interviewees were, however, offered an opportunity at the end of an interview to ask questions or proffer any other information which they felt was relevant to their application. Nevertheless, the panel was of the view that nurses have a duty to act openly at all times, as enshrined in the NMC Code of Conduct ( the Code ). This created a duty for you to disclose your dismissal from SLAM at your interview with ELFT having not declared this on your application form, notwithstanding the fact that you were not directly asked about this. You admitted in your evidence that you did not inform ELFT at your interview on 31 March 2009 that you had been dismissed from SLAM and therefore failed in this duty. Accordingly, charge 2 is found proved. 3. Your actions in charge 1 and/or 2 above were dishonest, in that you were attempting to conceal the fact that you had been dismissed from SLAM; This charge is found proved. The panel first considered charge 1 and asked itself (1) would your actions be considered dishonest by the standards of ordinary reasonable people and (2) did you realise that your actions were dishonest by those standards. The panel considered that ordinary reasonable people would think that completing an application form in March 2009 to give the impression that you were still working for SLAM, when in fact you had been dismissed and had not physically worked a shift there since June 2008, was deliberately misleading and dishonest. It further noted that the application form contained a declaration of truth which confirmed that The information 11

12 in this form is true and complete. I agree that any deliberate omissions, falsification or misrepresentation in this application form will be grounds for rejecting this application or subsequent dismissal by the organisation. The panel then moved on to consider whether you realised that your actions were dishonest by those standards. You told the panel in your oral evidence that, although you were dismissed from SLAM on 25 June 2008, at the time of making your application to ELFT in March 2009 you were still awaiting the outcome of the proceedings you had brought in the Employment Tribunal for unfair dismissal. You told the panel that it was your understanding that the dismissal from SLAM would not take effect until the proceedings in the Employment Tribunal concluded and therefore you thought you were still in a contractual employment relationship with SLAM. You said this was the reason that you put your dates of employment at SLAM as 24/05/2004 to present and that it had not been your intention to mislead ELFT or hide the fact of your dismissal. The panel considered your evidence but had regard to the letter from SLAM dated 24 June 2008 informing you that you had been summarily dismissed with immediate effect and the letter dated 26 November 2008 informing you that your appeal had been unsuccessful and the decision to dismiss you was upheld. It was of the view that these letters left no doubt that you had been dismissed from SLAM and it did not find your explanation of naivety or lack of knowledge of the process to be plausible. It had further regard to the fact that you lodged a claim for unfair dismissal with the Employment Tribunal and accepted the submissions of Mr Brown that, in order for you to lodge a claim of unfair dismissal, you must first have realised and accepted that you had been dismissed. Finally, the panel noted the fact that in the reason for leaving box on the application form you had written To further experience at your institution and had made no reference to the disciplinary proceedings at SLAM or your dismissal. Having regard to the above, the panel did not think it plausible that you were so naïve as to believe you were still employed by SLAM in light of the letters of dismissal. It was therefore of the view that writing present on your application form was a deliberate 12

13 attempt to mislead ELFT and hide the fact of your dismissal which you must have known was dishonest. It also considered that, even if you had been of the mistaken belief that a contractual relationship still existed between you and SLAM, your reason for leaving was not to further experience at your [ELFT] institution and therefore this representation was also a dishonest attempt to conceal the fact that you had been dismissed from SLAM. The panel therefore determined that your actions in relation to charge 1 were dishonest in that you were attempting to conceal the fact that you had been dismissed from SLAM. The panel then considered if your actions in relation to charge 2 were dishonest. It was of the view that ordinary reasonable people would think that, having not disclosed dismissal from a previous employer on an application form, perpetuating this misrepresentation at interview would be considered dishonest. You acknowledged, in cross-examination, that nurses had a duty to act openly and honestly. The panel therefore concluded that, notwithstanding the fact that you were not directly asked about your reasons for leaving SLAM at your interview on 31 March 2009, you knew you had a duty to be open and honest and therefore must have known that you were acting dishonestly when you did not inform the interview panel that you had been dismissed from SLAM. The panel therefore determined that your actions in relation to charge 2 were also dishonest. Accordingly, the panel finds charge 3 proved in its entirety. 5. Your actions in charge 4(i) and/or 4(ii) were dishonest, in that you were attempting to conceal the fact that you had been dismissed from SLAM; 13

14 This charge is found proved. The panel noted that at the start of this hearing you admitted charges 4(i) and 4(ii), namely that you had not disclosed your dismissal from SLAM on your application form for the role of band 6 Community Mental Health Nurse at ELFT in April 2010 and had stated that your reason for leaving SLAM was for a career break. However you denied charge 5, namely that your actions in this respect were dishonest. The panel first considered charge 5 as it related to charge 4(i) and asked itself if your actions would be considered dishonest by the ordinary standards of reasonable honest people. The panel had regard to its decision and reasons set out in charge 3 and concluded, for the reasons set out above, that this would be considered dishonest. The panel then considered if you knew you were acting dishonestly. In evidence you gave the same explanation as you had for charges 1, 2 and 3, namely, that you thought that an employment relationship had persisted between you and SLAM. Again the panel had regard to its earlier findings in charge 3 and concluded that you must have known that you were acting dishonestly when you did not disclose your dismissal from SLAM on the application form dated 12 April The panel also noted that, by April 2010, the Employment Tribunal proceedings had concluded and your claim for unfair dismissal had not been upheld. The panel considered that this added further weight to its earlier findings in that, by 12 April 2010, you could have been in no doubt at all that you had been dismissed from SLAM. The panel therefore determined that by not disclosing your dismissal from SLAM on the application form dated 12 April 2010 for the role of band 6 Community Mental Health Nurse you were acting dishonestly. The panel next considered charge 5 as it related to charge 4(ii). On the application form dated 12 April 2010 you stated your reason for leaving SLAM as a career break not because you had been dismissed. The panel was of the view that reasonable honest 14

15 people would think this was dishonest as it created the impression that you had left SLAM voluntarily, as opposed to being dismissed, which may have an effect on a potential employer s decision to offer you a job. The panel had regard to your oral evidence in relation to this charge. You said, following SLAM s decision to dismiss you, you informed them by letter that you would be appealing the decision to dismiss you. You stated that in this letter you also requested a career break. You did not receive confirmation of the career break from SLAM but assumed it had been approved as the appeal against your dismissal was considered. When questioned, you said that you had requested the career break so that SLAM could stay in touch with you during the appeal process. The panel was of the view that your understanding of the nature of a career break was somewhat at odds with the understanding of the panel but, nevertheless, by the time you completed the application form in April 2010, you could have been in no doubt that you had been dismissed from SLAM and therefore to describe the gap in your employment history as a career break was deliberately misleading and dishonest. Accordingly, the panel finds charge 5 proved in its entirety. 6. Whilst working at ELFT you: i) Did not disclose that you were under investigation by the NMC from 5 July 2012; This charge is found proved. In reaching this decision the panel had regard to your evidence and the correspondence from ELFT dated 5 February 2013 and 20 October You told the panel in oral evidence that you had originally been unaware of the NMC investigation in 2012 because you were in Sierra Leone at the time and therefore did not receive the NMC s 15

16 letter of 5 July 2012 advising you of it. However, your cousin was staying at your UK address and did inform you of the investigation. You made contact with the NMC by telephone in September 2012 while you were still in Sierra Leone to indicate that you would engage with it on your return to the UK and, following your return to the UK on 5 October 2012, provided written submissions in January You told the panel that on 5 February 2013 you were contacted by the NMC and asked to undergo a blood test that day. You were at work and therefore had to request time off from your manager, Ms 4. It was your evidence that you believed she was already aware of the NMC s investigation, assuming that it had been ELFT that had referred you. Furthermore, in your written response to the NMC in January 2013 you had provided details of your employer and line manager, as requested, on the assumption that the NMC would contact/notify them. However, it was your evidence that Ms 4 confirmed that it was not ELFT that had referred you and that she was unaware of the investigation. You told the panel that, at this stage, you told Ms 4 about the investigation and she gave you permission to leave the ward for two hours, signing your absence off as time in lieu. However, the panel noted that the account you gave in your oral evidence differed from the summary of events in the outcome letter of your disciplinary hearing, dated 20 October In the disciplinary hearing your account of events was that the call you received on 5 February 2013 was the first contact you had from the NMC and, until this point, you had been unaware of the investigation. The panel noted that you did not challenge the accuracy of this summary of your evidence given at that hearing. The panel also had regard to the letter dated 5 February 2013 which summarises a meeting between you and Ms 4 on that date. In paragraph 4 of the letter Ms 4 writes We also discussed your medical examination this afternoon which has been arranged via the NMC, thank you for advising me of this. The panel considered that this may be evidence that you informed her that you needed to attend an examination but does not provide evidence that you fully disclosed the extent of the NMC investigation. This view was further supported by the disciplinary hearing outcome letter, dated 20 October 2014, which reports that Ms 4 said the conversation in which you requested time off on 16

17 5 th February 2013 was very short and she did not consider that this constituted informing your employer of the NMC investigation She did not recall you mentioning that the medical examination has been commissioned by the NMC but the letter she wrote to you on the same day does refer to the NMC. [Ms 4] made it very clear that she was very disappointed and angry that you had not informed her or any other Manager of the NMC investigation or its outcome. The panel was mindful that this evidence was hearsay and had not been tested by cross-examination. However, it considered that the variation in the accounts given by you to the ELFT disciplinary panel in 2014 and to the panel at this hearing cast significant doubt over the reliability and credibility of your evidence in this regard. The panel therefore placed greater reliance on the evidence which was recorded as having been given by Ms 4 in the disciplinary hearing (and which summary was again not challenged by you) and so determined that whilst working at ELFT you did not disclose that you were subject to an NMC investigation from 5 July Accordingly, charge 6 (i) is found proved. ii) Did not disclose that you had received a three year caution order from the NMCs Conduct and Competence Committee effective from 28 May 2013; This charge is found proved. In reaching this decision, the panel had regard to your oral evidence. You told the panel that you were unaware that the NMC had imposed a caution order on your registration and therefore admitted that you did not inform ELFT. Accordingly, charge 6 (ii) is found proved. 17

18 7. Your actions in charge 6 above were dishonest, in that you were attempting to conceal the investigation as set out in 6(i) and/or the caution order as set out in 6(ii); This charge is found proved. The panel first considered if, by the ordinary standards of reasonable honest people, your actions were dishonest. The panel was aware that the NMC Code of Conduct places a duty on nurses to be open and honest and to inform their employer if they become the subject of a fitness to practise investigation. The panel was therefore satisfied that not disclosing that you were under investigation by the NMC from 5 July 2012 was objectively dishonest. The panel then considered if you knew your actions were dishonest by those standards. The panel had regard to your evidence that you thought ELFT was already aware of the investigation; however, it also noted that you admitted in cross-examination that you have always been aware of the Code s requirement to be open and honest and you agreed that you had a duty under the Code to inform your employer of the investigation. The panel was therefore satisfied that by failing to disclose that you were under investigation by the NMC you knew that you were acting dishonestly by not revealing that your regulator was considering your fitness to practise, which in turn might have affected your employment with ELFT. The panel then moved on to consider if your actions in relation to charge 6 (ii) were dishonest. As for charge 6 (i), the panel was satisfied that the duty to disclose NMC caution orders and other sanctions to employers was enshrined in the Code. The panel concluded that failure to do this would be considered dishonest by the ordinary standards of reasonable honest people. 18

19 The panel took account of your evidence in relation to this charge. You told the panel that you did not disclose the caution order to your employer because you were not aware of it yourself. You had been in Sierra Leone dealing with difficult family circumstances when the NMC meeting took place on 22 April 2013 and, upon your return to the UK, you just wanted to focus on returning to work. You therefore ignored the post that had been delivered in your absence and, as such, did not open or read the letter informing you that you had received a 3 year caution order. You said that you only became aware of the caution order on 1 April 2014 when Ms 4 informed you that ELFT s HR department had discovered it. You said that you then went straight home and opened the letter. The panel was mindful that to act dishonestly requires knowledge. It had careful regard to your assertion that you were unaware of the caution but decided that your explanation was not credible. It did not find it plausible that, knowing you were subject to an NMC investigation and were awaiting the outcome, you would ignore your post for almost a year. The panel found it more likely that you knew of the caution but were apprehensive about its impact on your employment and therefore knowingly and dishonestly did not inform ELFT. Accordingly, charge 7 is found proved in its entirety. 8. During the disciplinary meetings with ELFT in respect of your failures to disclose the NMC proceedings and caution you provided false information, in that you: i. Stated you were on a 6 month career break in Sierra Leone until 12 December 2008, when in fact you were present at an appeal against your dismissal from SLAM on This charge is found NOT proved. 19

20 In reaching this decision, the panel noted that the only evidence offered by the NMC relating to the disciplinary meetings with ELFT was the summary letter dated 20 October This letter makes no reference to your career break or the information you provided during the disciplinary meetings regarding this. Therefore the panel determined that the NMC had not provided sufficient evidence to prove, on the balance of probabilities, that during the disciplinary meetings with ELFT in respect of your failures to disclose the NMC proceedings and caution, you provided false information in that you stated you were on a 6 month career break in Sierra Leone until 12 December 2008, when in fact you were present at an appeal against your dismissal from SLAM on 16 October Accordingly, charge 8 is found not proved. 9. Your actions as described in charge 8 above were dishonest in that you knew you were providing false information; This charge is found NOT proved. In light of the panel s decision that there was insufficient evidence to find charge 8 proved, it follows that charge 9 is not capable of proof. Accordingly, charge 9 is found not proved. Submissions on misconduct and impairment Having announced its finding on all the facts, the panel then moved on to consider whether the facts found proved amount to misconduct and, if so, whether your fitness to practise is currently impaired. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. 20

21 The panel heard further evidence from you at this stage. You said that you accepted its findings in relation to the facts and that you took full responsibility for your actions and omissions. You said you now understand you have a responsibility to be open with your employers and felt stupid and foolish that you had not done so before. You said that, knowing what you do now, you would act differently, and you understood the negative impact your actions and omissions had on your colleagues and on the reputation of the nursing profession. You explained that you were currently employed by the London School of Economics as a mental health advisor. You said that you had been fully open with your employer regarding your employment history and criminal convictions and have kept them informed regarding the progress of these proceedings. You confirmed that there have been no further concerns regarding your clinical practice or your honesty and integrity. In his submissions Mr Brown invited the panel to take the view that your actions amounted to a breach of The Code: Standards of conduct, performance and ethics for nurses and midwives 2008 ( the Code ). He then directed the panel to specific paragraphs and identified where, in the NMC s view, your actions amounted to misconduct. Mr Brown 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. He then moved on to the issue of impairment. He submitted that this was not a case which raised public protection concerns but that the panel should have regard to protecting 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. Mr Brown referred the panel to the cases of Council for Healthcare 21

22 Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) and Bolton v The Law Society [1993] EWCA Civ 32. As regards remediation, Mr Brown referred the panel to the cases of Cohen v General Medical Council [2008] EWHC 581 (Admin) and Cheatle v GMC [2009] EWHC 645 (Admin) and submitted that dishonesty was difficult to remediate. Previous repeated acts of dishonesty, as found proved by the panel, suggested that you had not learned from your past mistakes and would therefore be likely to repeat conduct of the kind found proved in the future. Mr Akinoshun submitted, on your behalf, that although the charges found proved may amount to misconduct, your fitness to practise is not currently impaired. He submitted that you had given evidence to the panel of your remorse and insight and had been open and honest with your current employer regarding your past convictions and dismissals as well as regarding these proceedings. He drew the panel s attention to the testimonial from your current employer which supported your evidence. In light of this, Mr Akinoshun submitted that the panel could conclude that there was no risk of repetition and therefore a finding of current impairment was not necessary. The panel accepted the advice of the legal assessor which included reference to a number of judgments which are relevant, these included: Roylance [2000], Nandi v GMC [2004] EWHC 2317 (Admin), Grant [2011], Cohen [2008] and R v NMC (ex parte Johnson and Maggs) (No 2) [2013] EWHC 2140 (Admin). The panel adopted a two-stage process in its consideration, as advised. First, the panel must determine whether the facts found proved amount to misconduct. Secondly, only if the facts found proved amount to misconduct, the panel must decide whether, in all the circumstances, your fitness to practise is currently impaired as a result of that misconduct. 22

23 Decision on misconduct When determining whether the facts found proved amount to misconduct the panel had regard to the terms of The code: Standards of conduct, performance and ethics for nurses and midwives 2008 ( 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 judgement. The panel was of the view that your actions did fall significantly short of the standards expected of a registered nurse, and that your actions amounted to a breach of the Code. Specifically: The people in your care must be able to trust you with their health and wellbeing To justify that trust, you must: be open and honest, act with integrity and uphold the reputation of your profession. Act with integrity 51 You must inform any employers you work for if your fitness to practise is called into question. Uphold the reputation of your profession 61 You must uphold the reputation of your profession at all times. The panel appreciated that breaches of the Code do not automatically result in a finding of misconduct. However, the panel was of the view that your actions and omissions fell seriously short of the standards expected of registered nurses and therefore did amount to misconduct. The panel considered that the charges found proved fell into two categories: nondisclosure and dishonesty. The panel first considered whether your acts of non- 23

24 disclosure (in relation to your dismissal from SLAM, the reasons for leaving cited on your 2009 and 2010 application forms and subsequent interviews at ELFT, and the NMC s 2012 investigation and subsequent caution order) were serious enough to amount to misconduct. The panel was of the view that your acts of non-disclosure deprived your employers of important information which undermined the integrity of the recruitment process and their ability to risk assess the delivery of their services. This could have potentially severe implications for how the organisation is run and ultimately the standard of patient care provided. The panel also noted that your successful application in 2010 was for a band 6 position in which you were to act as a team leader for junior colleagues. The panel was of the view that your colleagues, and other members of the profession, would find it deplorable that you withheld details of your employment history when applying for a senior position in which you acted as a role model for colleagues. For these reasons the panel decided that your acts of nondisclosure were sufficiently serious to amount to misconduct. The panel was also of the view that the charges of dishonesty found proved were sufficiently serious to amount to misconduct. It was mindful that honesty, integrity and trustworthiness are considered to be the bedrock of any nurse s practice and that your repeated acts of dishonesty fell far below the standards expected of a registered nurse. The panel therefore found that your actions and omissions did fall seriously short of the conduct and standards expected of a nurse and amounted to misconduct. Decision on impairment The panel next went on to decide if as a result of this misconduct your fitness to practise is currently impaired. Nurses occupy a position of privilege and trust in society and are expected at all times to be professional and to maintain professional standards. Patients and their families must be able to trust nurses with their lives and the lives of their loved ones. To justify 24

25 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 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 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: 25

26 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 determined that limbs (b), (c) and (d) were engaged and, in this case, inextricably linked. It considered that by acting dishonestly you breached a fundamental tenet of the profession and, as such, brought the profession into disrepute. The panel considered the questions posed in Cohen and concluded that your acts of non-disclosure were remediable but your dishonesty would be more difficult to address. It had regard to the evidence you gave at the impairment stage and took account of the written testimonials which confirmed that you have been open with your current employer about these proceedings and voluntarily informed the agency of your dismissal from SLAM. However, although you gave evidence that you accepted the panel s findings, when asked during cross-examination if you now recognised that your actions were dishonest, your answers were evasive and equivocal. You reiterated that knowing what I know now, I would act differently and again cited naivety and a lack of understanding of the process as reasons for your actions. Although you have demonstrated that you have been open with your current employer, the panel was not satisfied that you had demonstrated any real insight or understanding as to why this was important and necessary or why your past actions were wrong. The panel considered that, in order to fully remediate your practice you needed to first accept and understand your failings and truly acknowledge that your actions were not acceptable. In light of your lack of insight and understanding, the panel concluded that there remained a risk of repetition 26

27 and therefore a real possibility that you would, in the future, act dishonestly, breach a fundamental tenet of the profession and bring the profession into disrepute. The panel also 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 considered that both your acts of non-disclosure and of dishonesty threatened the reputation of the entire nursing profession and undermined the trust and confidence that the public place in registered nurses. The panel therefore determined that, for all the reasons above, a finding of impairment on public interest grounds is necessary. Having regard to all of the above, the panel was satisfied that your fitness to practise is currently impaired. Determination on sanction The panel considered this case very carefully and decided to make a striking-off order. It directs the registrar to strike you off the register. The effect of this order is that the NMC register will show that you have been struck off the register. Mr Brown outlined aggravating and mitigating factors in this case and referred the panel to the Indicative Sanctions Guidance ( ISG ). He submitted that the dishonesty in this case was repeated and did not fall at the lower end of the spectrum. He referred the panel to the judgement of Bolton v The Law Society [1993] EWCA Civ 32 regarding the importance of protecting the collective reputation of a profession. 27

28 Mr Akinoshun reminded the panel of the need to act proportionally and to balance your interests with the public interest. He outlined further mitigation, including the financial implications that a suspension or striking-off order would have on your family, and submitted that the public interest may also include the safe return to practice of an experienced and knowledgeable nurse whose clinical skills had never been called into question. The panel accepted the advice of the legal assessor who referred the panel to the case of Parkinson v NMC [2010] EWHC 1898 (Admin) but also reminded it that a suspension or striking off order should not be seen as the default outcome and that every case must be assessed on its own particular set of circumstances. In reaching this decision, the panel had regard to all the evidence that has been adduced in this case. The panel bore 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 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 considered that the mitigating factors in this case were: You have engaged with these NMC proceedings; There are no reported concerns regarding your clinical skills and you have positive references from your current employers to attest to this; You have demonstrably disclosed your employment and NMC history to your current employer; At the time of the events leading to the charges you were experiencing difficult personal circumstances including [PRIVATE]. The panel considered that the aggravating factors in this case were: Your dishonesty was repeated; There was an identified risk of repetition; 28

29 You lacked any real insight; This is not the first time that you have faced NMC proceedings. The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of the case. 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 ISG, 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 considered that your 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. The panel was of the view that a caution order would not be sufficient to mark the conduct as unacceptable and would not send a strong enough message about the standards expected of registered nurses. The panel therefore decided that it would be neither proportionate nor in the public interest to impose a caution order. The panel next considered whether placing conditions of practice on your registration would be a sufficient and appropriate response. The panel was mindful that any conditions imposed must be proportionate, measurable and workable. The panel took into account the ISG, in particular: 64.8 It is possible to formulate conditions and to make provision as to how conditions will be monitored The panel was of the view that there are no practical or workable conditions that could be formulated, given the nature of the charges in this case. The panel considered that, as your misconduct related to your attitude and behaviour, rather than your clinical practice, there were no workable conditions which could be formulated which would 29