Nursing and Midwifery Council:

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing May 2018 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: NMC PIN: Marinela Ramona Vamvu 11G0029C Part(s) of the register: Registered Nurse Sub Part 1 Adult Nursing (July 2011) Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: England Misconduct Janet Leonard (Chair, Registrant member) Beth Maryon (Registrant member) Gill Mullen (Lay member) Nigel Parry Edmund Wylde Marinela Ramona Vamvu, not present and not represented in her absence Represented by Helen Guest, Case Presenter Facts proved: Entirety of charge 1, 2, 3, 4, 5, and 6 Facts not proved: Fitness to practise: Sanction: Interim Order: None Impaired Striking Off Order Interim Suspension Order 18 Months 1

2 Details of charge That you, a registered nurse: 1. Submitted time sheets and/or mileage claims to the Health Recruit Network ( the agency ) claiming payment for the following dates, which you had not worked: (i) 13 March 2017 (ii) 10 April 2017 (iii) 14 April 2017 (iv) 1 May 2017 (v) 4 May 2017 (vi) 8 May 2017 (vii) 19 May 2017 (viii) 31 May 2017 (ix) 1 June 2017 (x) 2 June Your conduct as described in charge 1 above was dishonest, in that you knew you were claiming payment for work and/or mileage on dates that you had not worked; 3. You falsified signatures of senior nurses and/or altered after signature, one or more of the time sheets and/or mileage claims referred to in charge 1; 4. Your conduct as described in charge 3 above was dishonest, in that you were seeking to deceive any reader of the timesheets and/or mileage claims; 2

3 5. Submitted a time sheet to the Health Recruit Network ( the agency ) claiming payment for working on 15 March 2017 from 09.00hrs to 17.00hrs, when you had worked from 10.00hrs to 16.00hrs; 6. Your conduct as described in charge 5 above was dishonest, in that you knew you were claiming payment for hours you had not worked; AND in light of the above, your fitness to practise is impaired by reason of your misconduct. 3

4 Decision on Service of Notice of Hearing The panel was informed at the start of this hearing that Miss Vamvu was not in attendance and that written notice of this hearing had been sent to Miss Vamvu s registered address by recorded delivery and by first class post on 12 April The panel took into account that the notice letter provided details of the allegation, the time, dates and venue of the hearing and, amongst other things, information about Miss Vamvu s right to attend, be represented and call evidence, as well as the panel s power to proceed in her absence. Ms Guest submitted that the NMC had complied with the requirements of Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the Rules ). The panel accepted the advice of the legal assessor. In the light of all of the information available, the panel was satisfied that Miss Vamvu has been served with notice of this hearing in accordance with the requirements of Rules 11 and 34. It noted that the rules do not require delivery and that it is the responsibility of any registrant to maintain an effective and up-to-date registered address. Decision on proceeding in the absence of the Registrant The panel next considered whether it should proceed in the absence of Miss Vamvu. The panel had regard to Rule 21 (2) which states: (2) Where the registrant fails to attend and is not represented at the hearing, the Committee 4

5 (a) (b) (c) shall require the presenter to adduce evidence that all reasonable efforts have been made, in accordance with these Rules, to serve the notice of hearing on the registrant; may, where the Committee is satisfied that the notice of hearing has been duly served, direct that the allegation should be heard and determined notwithstanding the absence of the registrant; or may adjourn the hearing and issue directions. Ms Guest invited the panel to continue in the absence of Miss Vamvu on the basis that she had deliberately decided not to attend this hearing. Ms Guest informed the panel that these proceedings had previously been listed for 12 March 2018, and had been adjourned; before the hearing, the NMC had received an from Miss Vamvu s representatives at the time, requesting a postponement of the relevant hearing as Miss Vamvu was unavailable due to personal matters. Ms Guest informed the panel that there were a number of witnesses in attendance today, and that further witnesses were to be called throughout these proceedings. Ms Guest presented the panel with a bundle of correspondence between the NMC and Miss Vamvu. Ms Guest further informed the panel that, on 30 April 2018, the NMC had received an from Miss Vamvu s representatives, stating that they no longer acted for Miss Vamvu. Ms Guest submitted that there had been no recent engagement at all by Miss Vamvu with the NMC in relation to these proceedings, and no response to the charge as set out in the Notice of Hearing; as a consequence, there was no reason to believe that an adjournment would secure her attendance on some future occasion. Ms Guest submitted that expeditious disposal of this case would be in the interests of justice and also in the public interest. 5

6 The panel accepted the advice of the legal assessor. The panel noted that its discretionary power to proceed in the absence of a registrant under the provisions of Rule 21 is not absolute and is one that should be exercised with the utmost care and caution as referred to in the case of R. v Jones (Anthony William), (No.2) [2002] UKHL 5. It also had regard to the principles set out in the case of Adeogba v GMC [2016] EWCA Civ 162. The panel has decided to proceed in the absence of Miss Vamvu. In reaching this decision, the panel has considered the submissions of the case presenter, and the advice of the legal assessor. It has had particular regard to the factors set out in the decision of Jones. It has had regard to the overall interests of justice and fairness to all parties. It noted that: the allegations against Miss Vamvu were serious in nature; Miss Vamvu has not recently engaged with the NMC and has not responded to any of the letters sent to her about this hearing; no application for an adjournment in relation to these proceedings has been made by Miss Vamvu; there is no reason to suppose that adjourning would secure Miss Vamvu s attendance at some future date; three witnesses have attended today to give live evidence, and others are due to attend; not proceeding may inconvenience the witnesses, their employer(s) and, for those involved in clinical practice, the patients who need their professional services; further delay may have an adverse effect on the ability of witnesses accurately to recall events; there is a strong public interest in the expeditious disposal of the case. 6

7 There is some disadvantage to Miss Vamvu in proceeding in her absence. Although the evidence upon which the NMC relies will have been sent to her at her registered address, she has made no response to the allegations. She will not be able to challenge the evidence relied upon by the NMC and will not be able to give evidence on her own behalf. However, in the panel s judgment, this can be mitigated. The panel can make allowance for the fact that the NMC s evidence will not be tested by cross examination and, of its own volition, can explore any inconsistencies in the evidence which it identifies. Furthermore, the limited disadvantage is the consequence of Miss Vamvu s decision to absent herself from the hearing, waive her rights to attend and/or be represented and to not provide evidence or make submissions on her own behalf. In these circumstances, the panel has decided that it is fair, appropriate and proportionate to proceed in the absence of Miss Vamvu. The panel will draw no adverse inference from Miss Vamvu s absence in its findings of fact. 7

8 Decision and reasons on application pursuant to Rule 31 The panel heard an application made by Ms Guest under Rule 31 of the Rules to allow the written statement of Ms 1 into evidence. Ms 1 was not present at this hearing and Ms Guest informed the panel that the NMC had intended from the start that her evidence be introduced into proceedings as hearsay evidence, in order to minimise the time, effort and cost to Ms 1 and to the NMC. Ms Guest informed the panel that therefore this was not a matter of Ms 1 being unavailable to attend this hearing, but rather of an administrative decision, made by the NMC to spare a witness time, effort and cost, if possible. Ms Guest informed the panel that, in the preparation of this hearing, it had been indicated in a letter to Miss Vamvu and her then-representative, dated 14 December 2017, that the NMC intended to introduce Ms 1 s evidence without calling her as a live witness; the NMC received no response to this letter. Furthermore, in an sent on 1 May 2018, the NMC reminded Miss Vamvu that they proposed to make an application under Rule 31 in relation to Ms 1 s evidence, and invited her to provide any objections to this course of action: the NMC received no response to this . Ms Guest submitted that Ms 1 s evidence could not be said to be sole and decisive in this matter, taking into account the seriousness of the allegations against Miss Vamvu. She further provided the panel with some background to Ms 1 s evidence to take into account as context. Despite knowledge of the nature of the evidence to be given by this witness, Miss Vamvu made the decision not to attend this hearing. On this basis, Ms Guest advanced the argument that there was no unfairness to Miss Vamvu in allowing Ms 1 s written statement into evidence. The panel accepted the legal assessor s advice on the issues it should take into consideration in respect of this application. This included that Rule 31 of the Rules 8

9 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 legal assessor also referred the panel to the relevant considerations identified below as set out in the case of Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565 (Admin). The panel was of the view that, taking into account the relevant considerations identified in Thorneycroft, and the fact that there appeared to be relevant questions which the panel wished to put to Ms 1, it would not be appropriate to grant the NMC s application: it did not consider that the NMC s reasons for not calling Ms 1 (i.e. to save time, effort and costs) should outweigh the interests of justice and the public interest, which would be better served were Ms 1 to attend this hearing and provide oral evidence. The panel determined that Ms 1 s live evidence would be of assistance in their decision making. In making this decision, the panel had in mind: the seriousness of the allegations in these proceedings, the reasons for Ms 1 s non-attendance, and the steps which the NMC had taken (and could take) to secure her attendance. Accordingly, the panel directed the NMC to call Ms 1 to give live evidence at this hearing. In these circumstances the panel refused the application. 9

10 Background The charges arose whilst Miss Vamvu was employed as an Agency Nurse by Health Recruit Network ( the Agency ), while she was on a placement at Essex Partnership NHS Trust ( the Trust ); Miss Vamvu was working in a community nursing role at the time. It is alleged that on 8 June 2017 a member of the Trust s administrative team identified a time sheet belonging to Miss Vamvu which contained shifts Miss Vamvu had not worked because she was off sick. This was the time sheet for the week commencing 29 May Miss Vamvu had been off sick from 31 May 2 June 2017; it is alleged that, despite this, the time sheet claimed she had worked 09:00 17:00 on these three days. Ms 3 investigated this concern further by looking at Miss Vamvu s past submitted time sheets and the rosters. It is alleged that she discovered a further eight occasions on which Miss Vamvu had claimed pay for shifts that she had not actually worked (in whole or part). It is further alleged that accompanying mileage claim forms were also submitted alongside these time sheets, claiming for mileage not incurred on the days which Miss Vamvu was not working. On 8 June 2017, Ms 5 was alerted to the fact that her signature appeared on Miss Vamvu s time sheet and mileage claim form for the week commencing 29 May On inspection, Ms 5 stated that this was not her signature on the time sheet as she was on annual leave and out of the country from 2 5 June As part of the Trust s internal investigation, the apparent signatories of Miss Vamvu s time sheets and mileage claim forms were asked to verify their signatures. Ms 4 said that she was not certain that the authorising signature in questions was hers, while Ms 5 and Ms 6 both confirmed that the authorising signatures in question were definitely not theirs. On 8 June 2017, when initially questioned about the time sheet for the week commencing 29 May 2017 and why she had claimed pay and mileage when she was off sick, Miss Vamvu initially stated that she had got confused with the days. She then 10

11 proceeded to state that Ms 6 had signed the time sheet. When she was informed that it was Ms 5 signature that appeared on the time sheet and mileage claim form in question, Miss Vamvu said that it was actually Ms 5 that had signed. When informed that Ms 5 had denied that this was her signature, Miss Vamvu stated of course you would believe the nurses, but that is fine. Miss Vamvu was asked if she understood what it meant if Ms 5 denied signing the time sheet and mileage claim form, to which she replied yes, yes, stealing. Miss Vamvu offered no further explanation. In a handwritten statement dated 9 June 2017, Miss Vamvu stated that she had sent her time sheet to the Agency to be paid, and after a few days I realise [sic] that should not put the days wich [sic] I was sick. Miss Vamvu stated the matter was a mistake. On 12 June 2017 in a telephone call to Mr 2, Miss Vamvu said that time sheets were always signed ahead of time by the senior nurses. When questioned further, Miss Vamvu responded with phrases such as I cannot remember and how am I supposed to know. She said I will pay you back all of the money, end of discussion and then terminated the call. In a handwritten statement dated 13 June 2017, Miss Vamvu stated that nurses at the Trust had told her she would get sick pay and had signed her time sheets - including shifts she was off sick. On 15 June 2017, in a telephone call to Mr 2, Miss Vamvu confirmed that she did not work the dates in question; however, she accepted no responsibility for the false submissions and blamed the signatories for signing the time sheets without checking. Miss Vamvu claimed that she was told by her time sheet signatories that she was entitled to sick pay because she working for the NHS. 11

12 Decision on the findings on facts and reasons In reaching its decisions on the facts, the panel considered all the evidence adduced in this case, together with the submissions made by Ms Guest, on behalf of the NMC. The panel heard and accepted the advice of the legal assessor, with particular reference to the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67, and its applicability to the matters at issue in this case. 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. The panel has drawn no adverse inference from the non-attendance of Miss Vamvu. In reaching its decisions on the facts, the panel took into account all the oral and documentary evidence in this case. The panel heard oral evidence from six witnesses tendered on behalf of the NMC. Witnesses called on behalf of the NMC were: Ms 1 Clinical Lead at the Trust Mr 2 Recruitment Manager at the Agency Ms 3 Clinical Team Manager at the Trust Ms 4 NHS Band 6 Senior District Nurse Ms 5 NHS Band 6 Senior Community Nurse Ms 6 Senior District Nursing Sister 12

13 The panel first considered the overall credibility and reliability of all of the witnesses it had heard from. The panel considered the evidence of Ms 1 to be honest and reliable. She was a professional witness, who gave clear evidence to the panel. In particular, Ms 1 provided helpful evidence about the transcript of her meeting with Miss Vamvu, explaining that it was not, in fact, an exact transcript, but a set of notes written immediately after the conclusion of the meeting. The panel had no concerns about Ms 1 s credibility as a witness, and noted that she had stated that there were no relationship difficulties or tensions between Miss Vamvu and other members of her team. Mr 2 s evidence was reflective of his role at the Agency, rather than the Trust. He spoke clearly about the Agency and his knowledge of the matters at hand. To his credit, Mr 2 made a frank admission that the Agency was not normally engaged with community nurses. The panel found him to be a reliable and credible witness, who was consistent in both his oral and written evidence. The panel was grateful for Mr 2 s thorough explanation of the Agency s procedures. The panel considered Ms 3 to be a credible and reliable witness, who was able to provide some information about the relevant administrative systems within the Trust. Ms 3 spoke candidly about the Trust s processes, and gave a helpful explanation, reconciling the electronic and written systems in place at the Trust. She was clear that time sheets should never be authorised ahead of time, and that there must in every case be a check that the nurse in question had worked the stated shifts before the time sheets were signed off; furthermore, she was clear that, with regards to a training session between 10.00hrs and 16.00hrs, only the training hours could be claimed for. Ms 4 s evidence was considered to be reliable and credible, and she did her best to assist the panel. The panel noted that Ms 4 had more of an issue recollecting the matters at hand than other witnesses, but took into account that she is not currently working in the relevant team and may no longer be as familiar with the processes. Ms 4 13

14 was not certain whether or not she had signed the relevant time sheets, and spoke honestly on the matter; the panel found that her frank and open concessions added to her credibility. Ms 4 provided helpful evidence in relation to the accuracy of the handwritten diary (used by members of the Trust to monitor which staff were supposed to be on shift on any particular day), when compared to the online roster of the Trust. The panel considered the evidence of Ms 5 to be a reliable and credible witness, who gave clear evidence both orally and in writing. Ms 5 assisted the panel further with exploration of the handwritten diary, and was clear in her evidence that she was certain that the signatures alleged to be hers were not written by her. Ms 5 informed the panel that the online roster was prepared 2-4 weeks in advance in order to schedule staff cover, yet subsequently it could change due to unforeseen circumstances - for example, staff sick leave. Ms 6 was considered by the panel to be a very reliable and honest witness. She attempted to give helpful explanations concerning the Trust s online roster, and stated that the handwritten diary was more accurate than the online roster, as it recorded in real time the staff changes that took place daily in the community nursing team. Ms 6 also stated that there were no relationship issues between Miss Vamvu and her team, and that she considered Miss Vamvu to have been a safe practitioner, as far as she was aware. The panel considered each charge and made the following findings: That you, a registered nurse: Charge 1: 1. Submitted time sheets and/or mileage claims to the Health Recruit Network ( the agency ) claiming payment for the following dates, which you had not worked: 14

15 Sub-charge 1(i): (i) 13 March 2017 This charge is found proved. In reaching this decision, the panel took into account the evidence of Ms 6, as well as the relevant time sheet and mileage claim provided to the Agency by Miss Vamvu, the Trust s online roster and the handwritten diary entry (to which the panel attached significant weight as it had been stated by a number of witnesses to be the more accurate record), for 13 March The panel considered the Trust s online roster, which did not have Miss Vamvu scheduled to work on 13 March It further considered the handwritten diary entry for 13 March 2017, where Miss Vamvu s name (i.e. Ramona ) had been struck through, and annotated with the word Sick. It determined that it was likely that Miss Vamvu had not initially been scheduled to work the day in question, but had been called in on short notice to cover a shift hence, her initial appearance in the diary, subsequently crossed out. Having heard from Ms 6 that the crossing-out of a name in the handwritten diary was standard and accepted practice to denote that a worker would not be working on that day, and that the handwritten diary was a more accurate and up-to-date reflection of reality than the online roster, the panel found that Miss Vamvu had not worked on 13 March The panel considered the timesheet which Miss Vamvu had provided to the Agency in respect of 13 March The panel determined that, as Miss Vamvu had not worked on 13 March 2017, she could not legitimately claim mileage for that day. 15

16 Therefore, having considered all the evidence, the panel was satisfied that the NMC has shown, on the balance of probabilities, that Miss Vamvu submitted both a time sheet and a mileage claim to the Agency, claiming payment for 13 March 2017, which she had not worked. It accordingly found the charge proved. Sub-charge 1(ii): (ii) 10 April 2017 This charge is found proved. In reaching this decision, the panel took into account the evidence of Ms 6, as well as the relevant time sheet and mileage claim provided to the Agency by Ms Vamvu, the Trust s online roster and the handwritten diary entry (to which the panel attached significant weight as it had been stated by a number of witnesses to be the more accurate record), for 10 April The panel considered the Trust s online roster, which did not have Miss Vamvu scheduled to work on 10 April It further considered the handwritten diary entry for 10 April 2017, where Miss Vamvu s name (i.e. Ramona ) had been marked on either side with a cross, and annotated with the word Sick. It determined that it was likely that Miss Vamvu had not initially been scheduled to work the day in question, but had been called in on short notice to cover a shift hence, her initial appearance in the diary, subsequently crossed out. Having heard from Ms 6 that writing the word Sick next to a name in the handwritten diary was standard and accepted practice to denote that a worker would not be working on that day, and that the handwritten diary was a more accurate and up-to-date reflection of reality than the online roster, the panel considered that Miss Vamvu had not worked on 10 April The panel considered the timesheet which Miss Vamvu had provided to the Agency in respect of 10 April

17 The panel determined that, as Miss Vamvu had not worked on 10 April 2017, she could not legitimately claim mileage for that day. Therefore, having considered all the evidence, the panel was satisfied that the NMC has shown, on the balance of probabilities, that Miss Vamvu submitted both a time sheet and a mileage claim to the Agency, claiming payment for 10 April 2017, which she had not worked. It accordingly found the charge proved. Sub-charge 1(iii): (iii) 14 April 2017 This charge is found proved. In reaching this decision, the panel took into account the evidence of Ms 6, as well as the relevant time sheet and mileage claim provided to the Agency by Ms Vamvu, the Trust s online roster and the handwritten diary entry (to which the panel attached significant weight as it had been stated by a number of witnesses to be the more accurate record), for 14 April The panel considered the Trust s online roster, which did not have Miss Vamvu scheduled to work on 14 April It further considered the handwritten diary entry for 14 April 2017, where Miss Vamvu s name (i.e. Ramona ) had been crossed out. It determined that it was likely that Miss Vamvu had not initially been scheduled to work the day in question, but had been called in on short notice to cover a shift hence, her initial appearance in the diary, subsequently crossed out. The panel noted that Ms 6 was not scheduled to work 14 April 2017, either on the online roster or in the handwritten diary. Having heard from Ms 6 that crossing a name out in the handwritten diary was standard and accepted practice to denote that a worker would 17

18 not be working on that day, and that the handwritten diary was a more accurate and upto-date reflection of reality than the online roster, the panel considered that Miss Vamvu had not worked on 14 April The panel considered the timesheet which Miss Vamvu had provided to the Agency in respect of 14 April The panel determined that, as Miss Vamvu had not worked on 14 April 2017, she could not legitimately claim mileage for that day. Therefore, having considered all the evidence, the panel was satisfied that the NMC has shown, on the balance of probabilities, that Miss Vamvu submitted both a time sheet and a mileage claim to the Agency, claiming payment for 14 April 2017, which she had not worked. It accordingly found the charge proved. Sub-charge 1(iv): (iv) 1 May 2017 This charge is found proved. In reaching this decision, the panel took into account the evidence of Ms 4, as well as the relevant time sheet and mileage claim provided to the Agency by Ms Vamvu, the Trust s online roster and the handwritten diary entry (to which the panel attached significant weight as it had been stated by a number of witnesses to be the more accurate record), for 1 May The panel considered the Trust s online roster, which did not have Miss Vamvu scheduled to work on 1 May It further considered the handwritten diary entry for 1 May 2017, where Miss Vamvu s name (i.e. Ramona ) had been crossed out. It determined that it was likely that Miss Vamvu had not initially been scheduled to work the day in question, but had been called in on short notice to cover a shift hence, her initial appearance in the diary, subsequently crossed out. 18

19 Having heard from Ms 4 that crossing out a name in the handwritten diary was standard and accepted practice to denote that a worker would not be working on that day, and that the handwritten diary was a more accurate and up-to-date reflection of reality than the online roster, the panel considered that Miss Vamvu had not worked on 1 May The panel considered the timesheet which Miss Vamvu had provided to the Agency in respect of 1 May The panel determined that, as Miss Vamvu had not worked on 1 May 2017, she could not legitimately claim mileage for that day. Therefore, having considered all the evidence, the panel was satisfied that the NMC has shown, on the balance of probabilities, that Miss Vamvu submitted both a time sheet and a mileage claim to the Agency, claiming payment for 1 May 2017, which she had not worked. It accordingly found the charge proved. Sub-charge 1(v): (v) 4 May 2017 This charge is found proved. In reaching this decision, the panel took into account the evidence of Ms 4, as well as the relevant time sheet and mileage claim provided to the Agency by Ms Vamvu, the Trust s online roster and the handwritten diary entry (to which the panel attached significant weight as it had been stated by a number of witnesses to be the more accurate record), for 4 May The panel considered the Trust s online roster, which did not have Miss Vamvu scheduled to work on 4 May It further considered the handwritten diary entry for 4 May 2017, where Miss Vamvu s name (i.e. Ramona ) had been crossed out. It 19

20 determined that it was likely that Miss Vamvu had not initially been scheduled to work the day in question, but had been called in on short notice to cover a shift hence, her initial appearance in the diary, subsequently crossed out. Having heard from Ms 4 that crossing out a name in the handwritten diary was standard and accepted practice to denote that a worker would not be working on that day, and that the handwritten diary was a more accurate and up-to-date reflection of reality than the online roster, the panel considered that Miss Vamvu had not worked on 4 May The panel considered the timesheet which Miss Vamvu had provided to the Agency in respect of 4 May The panel determined that, as Miss Vamvu had not worked on 4 May 2017, she could not legitimately claim mileage for that day. Therefore, having considered all the evidence, the panel was satisfied that the NMC has shown, on the balance of probabilities, that Miss Vamvu submitted both a time sheet and a mileage claim to the Agency, claiming payment for 4 May 2017, which she had not worked. It accordingly found the charge proved. Sub-charge 1(vi): (vi) 8 May 2017 This charge is found proved. In reaching this decision, the panel took into account the evidence of Ms 6, as well as the relevant time sheet and mileage claim provided to the Agency by Ms Vamvu, the Trust s online roster and the handwritten diary entry (to which the panel attached significant weight as it had been stated by a number of witnesses to be the more accurate record), for 8 May

21 The panel considered the Trust s online roster, which did not have Miss Vamvu scheduled to work on 8 May It further considered the handwritten diary entry for 8 May 2017, where Miss Vamvu s name (i.e. Ramona ) had been crossed out, and annotated with the word Sick. It determined that it was likely that Miss Vamvu had not initially been scheduled to work the day in question, but had been called in on short notice to cover a shift hence, her initial appearance in the diary, subsequently crossed out. The panel noted, according to the online roster, the handwritten diary and her own oral evidence, Ms 6 had been working on 8 May 2017 and 12 May 2017 (i.e. the day on which the relevant time sheet would have been signed). The panel further considered Ms 6 s oral and written evidence that the authorising signature on the relevant timesheet was definitely not hers. Having heard from Ms 6 that crossing out a name and writing the word Sick next to a name in the handwritten diary was standard and accepted practice to denote that a worker would not be working on that day, and that the handwritten diary was a more accurate and up-to-date reflection of reality than the online roster, the panel considered that Miss Vamvu had not worked on 8 May The panel considered the timesheet which Miss Vamvu had provided to the Agency in respect of 8 May The panel determined that, as Miss Vamvu had not worked on 8 May 2017, she could not legitimately claim mileage for that day. Therefore, having considered all the evidence, the panel was satisfied that the NMC has shown, on the balance of probabilities, that Miss Vamvu submitted both a time sheet and a mileage claim to the Agency, claiming payment for 8 May 2017, which she had not worked. It accordingly found the charge proved. 21

22 Sub-charge 1(vii): (vii) 19 May 2017 This charge is found proved. In reaching this decision, the panel took into account the evidence of Ms 6, as well as the relevant time sheet and mileage claim provided to the Agency by Ms Vamvu, the Trust s online roster and the handwritten diary entry (to which the panel attached significant weight as it had been stated by a number of witnesses to be the more accurate record), for 19 May The panel considered the Trust s online roster, which did not have Miss Vamvu scheduled to work on 19 May It further considered the handwritten diary entry for 19 May 2017, where Miss Vamvu s name (i.e. Ramona ) had been crossed out, and annotated with the word Sick. It determined that it was likely that Miss Vamvu had not initially been scheduled to work the day in question, but had been called in on short notice to cover a shift hence, her initial appearance in the diary, subsequently crossed out. Having heard from Ms 6 that crossing out a name and writing the word Sick next to a name in the handwritten diary was standard and accepted practice to denote that a worker would not be working on that day, and that the handwritten diary was a more accurate and up-to-date reflection of reality than the online roster, the panel considered that Miss Vamvu had not worked on 19 May The panel considered the timesheet which Miss Vamvu had provided to the Agency in respect of 19 May The panel determined that, as Miss Vamvu had not worked on 19 May 2017, she could not legitimately claim mileage for that day. 22

23 Therefore, having considered all the evidence, the panel was satisfied that the NMC has shown, on the balance of probabilities, that Miss Vamvu submitted both a time sheet and a mileage claim to the Agency, claiming payment for 19 May 2017, which she had not worked. It accordingly found the charge proved. Sub-charge 1(viii): (viii) 31 May 2017 This charge is found proved. In reaching this decision, the panel took into account the evidence of Ms 5, as well as the relevant time sheet and mileage claim provided to the Agency by Ms Vamvu, the Trust s online roster and the handwritten diary entry (to which the panel attached significant weight as it had been stated by a number of witnesses to be the more accurate record), for 31 May The panel considered the Trust s online roster, which did not have Miss Vamvu scheduled to work on 31 May It further considered the handwritten diary entry for 31 May 2017, where Miss Vamvu s name (i.e. Ramona ) had been crossed out and annotated with the word Sick. It determined that it was likely that Miss Vamvu had not initially been scheduled to work the day in question, but had been called in on short notice to cover a shift hence, her initial appearance in the diary, subsequently crossed out. Having heard from Ms 5 that crossing out a name in the handwritten diary was standard and accepted practice to denote that a worker would not be working on that day, and that the handwritten diary was a more accurate and up-to-date reflection of reality than the online roster, the panel considered that Miss Vamvu had not worked on 31 May The panel considered the timesheet which Miss Vamvu had provided to the Agency in respect of 31 May

24 The panel determined that, as Miss Vamvu had not worked on 31 May 2017, she could not legitimately claim mileage for that day. Therefore, having considered all the evidence, the panel was satisfied that the NMC has shown, on the balance of probabilities, that Miss Vamvu submitted both a time sheet and a mileage claim to the Agency, claiming payment for 31 May 2017, which she had not worked. It accordingly found the charge proved. Sub-charge 1(ix): (ix) 1 June 2017 This charge is found proved. In reaching this decision, the panel took into account the evidence of Ms 5, as well as the relevant time sheet and mileage claim provided to the Agency by Ms Vamvu, the Trust s online roster and the handwritten diary entry (to which the panel attached significant weight as it had been stated by a number of witnesses to be the more accurate record), for 1 June The panel considered the Trust s online roster, which did not have Miss Vamvu scheduled to work on 1 June It further considered the handwritten diary entry for 1 June 2017, where Miss Vamvu s name (i.e. Ramona ) had been crossed out and annotated with the word Sick. It determined that it was likely that Miss Vamvu had not initially been scheduled to work the day in question, but had been called in on short notice to cover a shift hence, her initial appearance in the diary, subsequently crossed out. Having heard from Ms 5 that crossing out a name in the handwritten diary was standard and accepted practice to denote that a worker would not be working on that day, and 24

25 that the handwritten diary was a more accurate and up-to-date reflection of reality than the online roster, the panel considered that Miss Vamvu had not worked on 1 June The panel considered the timesheet which Miss Vamvu had provided to the Agency in respect of 1 June The panel determined that, as Miss Vamvu had not worked on 1 June 2017, she could not legitimately claim mileage for that day. Therefore, having considered all the evidence, the panel was satisfied that the NMC has shown, on the balance of probabilities, that Miss Vamvu submitted both a time sheet and a mileage claim to the Agency, claiming payment for 1 June 2017, which she had not worked. It accordingly found the charge proved. Sub-charge 1(x): (x) 2 June 2017 This charge is found proved. In reaching this decision, the panel took into account the evidence of Ms 5, as well as the relevant time sheet and mileage claim provided to the Agency by Ms Vamvu, the Trust s online roster and the handwritten diary entry (to which the panel attached significant weight as it had been stated by a number of witnesses to be the more accurate record), for 2 June The panel considered the Trust s online roster, which did not have Miss Vamvu scheduled to work on 2 June It further considered the handwritten diary entry for 2 June 2017, where Miss Vamvu s name (i.e. Ramona ) had been crossed out and annotated with the word Sick. It determined that it was likely that Miss Vamvu had not initially been scheduled to work the day in question, but had been called in on short 25

26 notice to cover a shift hence, her initial appearance in the diary, subsequently crossed out. Having heard from Ms 5 that crossing out a name in the handwritten diary was standard and accepted practice to denote that a worker would not be working on that day, and that the handwritten diary was a more accurate and up-to-date reflection of reality than the online roster, the panel considered that Miss Vamvu had not worked on 2 June The panel considered the timesheet which Miss Vamvu had provided to the Agency in respect of 2 June The panel determined that, as Miss Vamvu had not worked on 2 June 2017, she could not legitimately claim mileage for that day. Therefore, having considered all the evidence, the panel was satisfied that the NMC has shown, on the balance of probabilities, that Miss Vamvu submitted both a time sheet and a mileage claim to the Agency, claiming payment for 2 June 2017, which she had not worked. It accordingly found the charge proved. Charge 2: 2. Your conduct as described in charge 1above was dishonest, in that you knew you were claiming payment for work and/or mileage on dates that you had not worked This charge is found proved. In reaching this decision, the panel took into account the evidence of Mr 2, the time sheets and mileage claims provided by Miss Vamvu to the Agency in relation to the dates of Charge 1, the Trust s online roster, and the handwritten diary (to which the panel attached significant weight as it had been stated by a number of witnesses to be the more accurate record). The panel also took into account all recorded statements and explanations made by Miss Vamvu. 26

27 The panel noted that there needed to be cogent evidence of dishonesty in order for this charge to be found proved, and in considering how much weight to attach to Miss Vamvu s statements and explanations, the panel bore in mind that they had neither been given under oath, nor tested through questioning. The panel considered that Miss Vamvu s explanations concerning the submission of incorrect time sheets were inconsistent. It further considered that her initial explanation (i.e. that she had been confused as to the days in question) was not plausible; it related not to just one or two occasions, but to ten separate days between March and June The panel noted that, in relation to 31 May 2017, 1 June 2017 and 2 June 2017, it was stated in the handwritten diary that Miss Vamvu was sick; Miss Vamvu had also admitted that she called in sick. The panel therefore considered it highly unlikely that Miss Vamvu could have had the relevant time sheet signed on 2 June The panel took into account the evidence of Mr 2, and further considered Miss Vamvu s second explanation, that she believed herself to be entitled to sick pay. It found this explanation to be implausible the Agency s policy and procedure for making claims is clear, and had been covered by Mr 2 in his introductory discussion with Miss Vamvu. The panel determined that at the time which Miss Vamvu submitted the timesheets, she was well aware that she had not done the work in question and was therefore not entitled to submit the claim for pay. The panel considered the standards of ordinary decent people. It determined that an ordinary decent person with Miss Vamvu s state of knowledge would view her conduct, in submitting inaccurate time sheets and/or mileage claims in order to receive undeserved remuneration, to be dishonest. Therefore, having considered all the evidence, and having applied the test set out in Ivey, the panel was satisfied that the NMC has shown, on the balance of probabilities, 27

28 that Miss Vamvu was being dishonest in submitting time sheets and mileage claims to the Agency claiming payment for dates on which she had not worked. It accordingly found the charge proved. Charge 3: 3. You falsified signatures of senior nurses and/or altered after signature, one or more of the time sheet and/or mileage claims referred to in charge 1; This charge is found proved. In reaching this decision, the panel took into account the Trust s online roster, the handwritten diary (to which the panel attached significant weight as it had been stated by a number of witnesses to be the more accurate record), and the relevant time sheets provided to the Agency by Ms Vamvu. The panel further took into account the evidence of Ms 5 and Ms 6. The panel considered that Miss Vamvu had put forward to the Agency, on a number of occasions, time sheets and mileage claims which had apparently been authorised by either Ms 5 or Ms 6. The panel noted Ms 5 and Ms 6 were adamant in both their written and oral evidence that the authorising signatures on these time sheets were not theirs; the panel further noted that, in relation to 31 May 2017, 1 June 2017 and 2 June 2017, Ms 5 had separately confirmed that the signature was definitely not my writing and therefore my signature has been forged. Having considered all the evidence, the panel was satisfied that the NMC has shown, on the balance of probabilities, that Miss Vamvu falsified signatures of senior nurses. It accordingly found the charge proved. Charge 4: 28

29 4. Your conduct as described in charge 3 above was dishonest, in that you were seeking to deceive any reader of the timesheets and/or mileage claims; This charge is found proved. In reaching this decision, the panel took into account the Trust s online roster, the handwritten diary (to which the panel attached significant weight as it had been stated by a number of witnesses to be the more accurate record), and the relevant time sheets provided to the Agency by Ms Vamvu. The panel further took into account the evidence of Ms 5 and Ms 6. The panel noted that there needed to be cogent evidence of dishonesty in order for this charge to be found proved, and in considering how much weight to attach to Miss Vamvu s statements and explanations, the panel bore in mind that they had neither been given under oath, nor tested through questioning. The panel noted that on every time sheet, directly under the section marked Worker Signature, and where Miss Vamvu had entered her own signature, there was a notice which stated: I declare that the information I have given on this form is correct and complete and I understand that if I provide false information this may result in disciplinary action, prosecution or civil recovery proceedings. The panel could think of no credible and acceptable explanation as to why Miss Vamvu would falsify the signatures of senior nurses, other than to claim payment from the Agency for hours which she had not worked. The panel noted that Miss Vamvu denied forging the relevant signatures in her statement dated 9 June 2016, but considered that her explanation was not genuine and was also inconsistent with a previous explanation offered by Miss Vamvu. 29

30 The panel considered the standards of ordinary decent people. It determined that an ordinary decent person with Miss Vamvu s state of knowledge would view her conduct, in falsifying the signatures of senior nurses, to be dishonest. The panel considered therefore that Miss Vamvu was aware of her actions and the potential consequences associated with them. Therefore, having considered all the evidence, and having applied the test set out in Ivey, the panel was satisfied that the NMC has shown, on the balance of probabilities, that Miss Vamvu was being dishonest in falsifying the signatures of senior nurses. It accordingly found the charge proved. Charge 5: 5. Submitted a time sheet to the Health Recruit Network ( the agency ) claiming payment for working on 15 March 2017 from 09.00hrs to 17.00hrs, when you had worked from 10.00hrs to 16.00hrs; This charge is found proved. In reaching this decision, the panel took into account the evidence of Ms 1, Mr 2, Ms 3, Ms 5 and Ms 6, as well as the time sheet provided to the Agency by Ms Vamvu and the Trust s online roster, both for 15 March The panel noted that, on the online roster, Miss Vamvu s activities in relation to 15 March 2017 consisted solely of attending a training session between 10.00hrs and 16.00hrs. It further noted the oral evidence of Ms 5 that the online roster was prepared between two and four weeks in advance. The panel considered the oral evidence of Ms 1, Mr 2 and Ms 3, who all clearly stated that it was commonly expected that an agency worker, such as Miss Vamvu, would only claim to be paid for the time during which she attended the scheduled training, and not for any further hours or travel time. The panel took into account both the written and oral 30

31 evidence of Ms 6, who was certain that the signature on the time sheet, which purported to be hers, was definitely not hers. The panel considered that, on the balance of probabilities, Miss Vamvu had attended the training session on 15 March 2017 from 10.00hrs to hrs only, and had made a claim for two additional hours when not entitled to do so. It accordingly found the charge proved. Charge 6: 6. Your conduct as described in charge 5 above was dishonest, in that you knew you were claiming payment for hours you had not worked; This charge is found proved. In reaching this decision, the panel took into account the evidence of Mr 2 and Ms 3, as well as the time sheet provided to the Agency by Ms Vamvu and the Trust s online roster, both for 15 March The panel noted that there needed to be cogent evidence of dishonesty in order for this charge to be found proved, and in considering how much weight to attach to Miss Vamvu s statements and explanations, the panel bore in mind that they had neither been given under oath, nor tested through questioning. The panel considered Ms 3 s oral evidence that, having been scheduled to do so, Miss Vamvu would only have been expected to come into training between 10.00hrs and 16.00hrs; she would not have been given extra duties before or after that shift in her capacity as an agency worker, unlike a permanent member of staff. The panel took into account Mr 2 s clear evidence that an agency worker who worked from 10.00hrs to hrs could only expect to be paid for that period of time; the panel 31

32 further considered that there had been no particular explanation or excuse from Miss Vamvu in relation to this specific incident. The panel had sight of Miss Vamvu s signed Terms of Engagement for Nursing Staff, and in particular clause 7.4, which states that working time shall only consist of periods during which [Miss Vamvu] is carrying out activities or duties as part of the Assignment. Clause 7.4 further clarifies that time spent travelling to the Hirer s premises shall not count as part of the working time. The panel took into account Mr 2 s evidence that these matters had been clarified and confirmed by Miss Vamvu at the commencement of her employment with the Agency, and considered that Miss Vamvu therefore had full knowledge of the appropriate amount to claim for such activities. The panel considered the standards of ordinary decent people. It determined that an ordinary decent person with Miss Vamvu s state of knowledge would view her conduct, in claiming payment for hours which she had not worked, to be dishonest. Therefore, having considered all the evidence, and having applied the test set out in Ivey, the panel was satisfied that the NMC has shown, on the balance of probabilities, that Miss Vamvu was being dishonest in claiming payment for hours which she had not worked. It accordingly found the charge proved. 32

33 Submission 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 Miss Vamvu s fitness to practise is currently impaired. There is no statutory definition of fitness to practise. However, the NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. In her submissions Ms Guest invited the panel to take the view that Miss Vamvu s actions amount to a breach of The Code: Professional standards of practice and behaviour for nurses and midwives (2015) ( the Code ). Ms Guest directed the panel to sections 20, 20.1, 20.2, 20.3 and 20.4 of the Code, submitting in relation to section 20.4 that, although this was not a conviction case, Miss Vamvu s actions were such that they might have been found by a court to have been in contravention of the laws of the land. Ms Guest identified where, in the NMC s view, Miss Vamvu s actions amounted to misconduct. Ms Guest invited the panel to consider that the fraudulent behaviour included the falsification of signatures within a small, close-knit team where all team members got on well, including Miss Vamvu; she reminded the panel of Ms 3 s evidence that the Trust were about to invite Miss Vamvu to interview for a permanent position when the facts of this case came to light. Ms Guest submitted that Miss Vamvu s actions amounted to a complete breach of trust not only that between Miss Vamvu and her colleagues, but also between Miss Vamvu and the NHS as a whole. Ms Guest submitted that Miss Vamvu had breached numerous tenets of the Code, and that the dishonesty at hand had been perpetrated over four months with a significant level of sophistication; it had exploited the weaknesses in the system in place at the time regarding the submission of time sheets and mileage claim forms. 33