Nursing and Midwifery Council Investigating Committee Incorrect/Fraudulent Entry Hearing 1 October 2018 Nursing and Midwifery Council, 61 Aldwych, London, WC2B 4AE Name of registrant: NMC PIN: Arlene Lacanilao 01E1083O Part(s) of the register: Registered Nurse Sub part 1 Adult Nursing (April 2001) Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Mrs Lacanilao: Nursing and Midwifery Council: Outcome: Interim order: England Incorrect/Fraudulent Entry Peter Cadman (Chair, Lay member) Caroline Corby (Lay member) Julie Wainwright (Registrant member) Andrew Reid Jonathan Storey Not present or represented Represented by Louise Wilshire, Case Presenter Charges 1 and 2 proved. The panel decided that Mrs Lacanilao s entry on the NMC s register was fraudulently procured, and directed the Registrar to remove it from the register. Interim suspension order (18 months) 1
Details of charge: That you, 1. On or around 30 August 2016 submitted a Notification of Practice form indicating that you had met the requirements of 450 hours registered practice, when you had not (PROVED) 2. On or around 30 August 2016 submitted an application for readmission to the NMC register indicating that you had completed 3,787.5 hours registered practice hours at Barts Health NHS Trust, The Royal London Hospital, when you had not (PROVED) AND thereby, an entry made on sub part 1 of the register of the Nursing and Midwifery Council, in the name of Arlene Lacanilao, PIN 01E1083O, was fraudulently procured in that you knowingly sought to mislead the Nursing and Midwifery Council, or, in the alternative, incorrectly made in that the information provided was incorrect. 2
Service of notice of hearing The panel was informed at the start of this hearing that Mrs Lacanilao was not in attendance, nor was she represented in her absence. The panel was informed that notice of this hearing was sent to Mrs Lacanilao on 27 April 2018 by recorded delivery to her address on the register. The panel was also informed that the notice of this hearing, and accompanying documents, were sent to Mrs Lacanilao s email address. In the light of the information available, the panel was satisfied that notice had been served in compliance and accordance with Rules 5 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (the Rules). 3
Decision and reasons on application under Rule 19 Ms Wilshire, on behalf of the Nursing and Midwifery Council (NMC), made an application for parts of this hearing to be held in private on the basis that there would be reference to Mrs Lacanilao s health during the course of her submissions. Having heard that there will be reference to Mrs Lacanilao s health during the course of the hearing, the panel determined to hold such parts of the hearing in private. 4
Proceeding in absence The panel next considered whether to proceed in the absence of Mrs Lacanilao. Ms Wilshire invited the panel to proceed in the absence of Mrs Lacanilao. She submitted that this hearing had previously been listed to take place in March 2018. However, Mrs Lacanilao requested an adjournment to that hearing on account of [PRIVATE], and indicated that she would be returning to the UK from the Philippines on 30 August 2018. The notice of this hearing was sent to Ms Lacanilao on 27 April 2018. Ms Wilshire submitted that, after further email correspondence, Mrs Lacanilao did not respond to any communication from the NMC after 18 June 2018, including to confirm her response to the charges, whether she would be attending this hearing, or whether she had objections to the evidence of any of the witnesses. Ms Wilshire further submitted that Mrs Lacanilao has had ample opportunity to request an adjournment, and has not done so. The panel heard the submissions and took into account the advice of the legal assessor. The panel kept at the forefront of its thinking the principle that the discretion to proceed in the absence of a registrant is one which requires the utmost care and caution. The panel noted that, although she had previously responded to correspondence from the NMC, there had been no response from Mrs Lacanilao in relation to the notice of this hearing since 18 June 2018. It had particular regard to the factors set out in the decisions of R v Jones (No.2) [2002] UKHL 5 and GMC v Adeogba [2016] EWCA Civ 162, and had regard to the overall interests of justice and fairness to all parties. It noted that: Mrs Lacanilao has made no application for an adjournment of this hearing; Mrs Lacanilao has not engaged with the NMC since 18 June 2018; Mrs Lacanilao has not provided the NMC with details of how she may be contacted other than her registered address (at which she is apparently no longer resident) and her email address; there is no reason to suppose that adjourning would secure Mrs Lacanilao s attendance at some future date; five witnesses have attended today to give live evidence; not proceeding may inconvenience the witnesses and their employers; 5
further delay may have an adverse effect on the ability of witnesses accurately to recall events; and there is a strong public interest in the expeditious disposal of the case. Mrs Lacanilao had been sent notice of today s hearing. The panel was satisfied that she was, or should be, aware of today s hearing and was of the view that she had chosen to not attend. The panel concluded that Mrs Lacanilao had chosen voluntarily to absent herself. Given the lack of engagement by Mrs Lacanilao since 18 June 2018, the panel had no reason to believe that an adjournment would result in her attendance at a future hearing. Having weighed the interests of Mrs Lacanilao with those of the NMC and the public interest in an expeditious disposal of this hearing, the panel determined to proceed in Mrs Lacanilao s absence. 6
Background The NMC received a referral regarding Mrs Lacanilao in July 2017. Mrs Lacanilao s registration with the NMC lapsed on 1 May 2015, due to her not paying her registration fee. On 30 January 2016, Mrs Lacanilao started an application for readmission on to the register. Mrs Lacanilao submitted an online application form and Notification of Practise (NOP) form on 24 May 2016, which indicated that she had met the required practice hours and learning activity hours. In particular, Mrs Lacanilao stated that she had been employed by Barts Health NHS Trust (the Trust) from 22 September 2014 to 25 May 2016, but that she had not practised as a nurse whilst her registration had lapsed, due to [PRIVATE]. However, as Mrs Lacanilao had not paid her fee or supplied references, that application expired on 25 August 2016. On 30 August 2016, Mrs Lacanilao applied a further time for readmission to the register. As part of her application, Mrs Lacanilao completed a further NOP, indicating that she had met the requirements of 450 hours of registered practice and 35 hours of learning activity within the previous three years. As part of her readmission form, Mrs Lacanilao stated that she had worked 3,787.5 hours with the Trust, and provided a description of her practice as part of this form. On 30 November 2016, Mrs Lacanilao s application for readmission was accepted and an email was sent to inform her of this. It is alleged that Mrs Lacanilao did not, in fact, work 3,787.5 hours with the Trust, nor did she meet the requirements of 450 hours of registered practice. It is alleged that, in providing false information to the NMC as part of her readmission process, Mrs Lacanilao fraudulently procured her entry onto the NMC s register. 7
Decision on the finding on facts and reasons In reaching its decisions on the facts, the panel considered all the evidence in this case, together with the submissions made by Ms Wilshire, on behalf of the NMC. The panel heard and accepted the advice of the legal assessor. The panel went on to consider whether the entry on the NMC register was made fraudulently and/or incorrectly. 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. The panel heard oral evidence from two witnesses called on behalf of the NMC: Ms 1, NMC Senior Registrations Officer; and Ms 2, Senior Nurse for Neurosciences and Trauma at the Royal London Hospital at the relevant time. The panel considered Ms 1 and Ms 2 to be credible, honest and reliable witnesses. As a consequence of Mrs Lacanilao not being present, the panel decided that it did not need to hear oral evidence from the three other witnesses. The panel made the following findings in relation to the charges: Charge 1 1. On or around 30 August 2016 submitted a Notification of Practice form indicating that you had met the requirements of 450 hours registered practice, when you had not This charge is found proved. In reaching this decision, the panel took into account all of the evidence in this case. The panel had sight of a letter from the NMC to Mrs Lacanilao dated 30 August 2016, which contains a summary of her readmission declarations that she had entered onto the NMC s readmission forms online on that date. As part of those declarations, Mrs Lacanilao declared that she had worked 450 registered practice hours. 8
Ms 2, in her witness statement, stated that Mrs Lacanilao had been employed by the Trust as a band 5 staff nurse in the neurosurgery department, and that she had only worked one shift at the Royal London Hospital since starting employment there on 22 September 2014. Ms 2 further stated that Mrs Lacanilao s attendance was recorded as sickness from this date until 16 February 2015, at which point [PRIVATE]. The panel had sight of a screenshot of the Trust s rota confirming this. Ms 2 confirmed that she checked the Trust s internal systems to confirm whether Mrs Lacanilao worked in other hospitals within the Trust, but that there is no evidence that Mrs Lacanilao did, in fact, work in any of these environments during her employment with the Trust. Ms 2 confirmed that she reviewed Mrs Lacanilao s roster from 22 September 2014 until 1 June 2016, and no shifts appeared on this other than Mrs Lacanilao s recorded absences. In an email from Mrs Lacanilao to the NMC dated 2 May 2017, Mrs Lacanilao wrote: I can confirm that the following statements made by [Ms 2] were all true: Failure to retain my professional registration with NMC on 30-April-2015 [sic] whilst employed at Barts Health NHS Trust. In 2012, I had to travel back to the Philippines due to family crisis. I stayed there for 6-7 weeks, then returned work [sic]. I haven t recovered well, had off work sick, and failed to follow Trust Sickness Policy. As a result of that, I was dismissed. Then in 2014, [PRIVATE] but maintained communication with [the Ward Manager] through email. The panel carefully considered the evidence. It noted that, throughout the relevant period, the evidence from the Trust is that Mrs Lacanilao only worked one shift on her first day of employment, and was then on a period of sickness leave before [PRIVATE]. The panel had sight of screenshots of the online forms to be completed by registrants looking to apply for readmission to the NMC s register. As part of the section entitled Unregistered practice details, it states: 9
Please enter details of your unregistered practice. This includes if you were receiving maternity or sick pay while lapsed. Further sections are entitled Registered practice hours declaration and Registered practice hours details. The panel considered that, in these circumstances, Mrs Lacanilao would have known the difference between unregistered practice [PRIVATE] and registered practice, in which she would be undertaking nursing duties. The panel noted that, given the timings of Mrs Lacanilao s lapsed registration and her absences from the Trust (be it sickness or maternity leave), she would not have practised as a nurse for the 450 hours required in order to apply for readmission. The panel therefore finds charge 1 proved on the balance of probabilities. Charge 2 2. On or around 30 August 2016 submitted an application for readmission to the NMC register indicating that you had completed 3,787.5 hours registered practice hours at Barts Health NHS Trust, The Royal London Hospital, when you had not This charge is found proved. In reaching this decision, the panel took into account the evidence in this case. The panel had sight of a letter from the NMC to Mrs Lacanilao dated 30 August 2016, which contains a summary of her readmission declarations that she had entered onto the NMC s readmission forms online on that date. As part of those declarations, Mrs Lacanilao declared that she had worked 3,787.5 registered practice hours with the Trust at Royal London Hospital. Mrs Lacanilao went on to provide a description of her practice: Responsible for the assessment of patient care needs and the development, implementation and evaluation of plans of care, ensuring high standards of evidence based care. Competently provide clinical interventions to neurology and neurosurgical patients. Analyse and interpret complex data derived from patient monitoring and plan appropriate care. Participate in practice development project, 10
audit and implementation of new initiatives. Act as an effective mentor and preceptor of pre- registration students, junior, and return to practice staff nurses in the unit. Organise own work, manage own caseload and practice [sic] without direct supervision. Provide a leadership role model, demonstrate specialist knowledge and high standards of clinical practice in neurology and neurosurgery, and provide support or advice when necessary. Responsible for the assessment and subsequent ordering of bank agency staff including being an authorised signatory for temporary staff. Ms 2 had informed the panel that Mrs Lacanilao had, at the most, only completed one shift during her employment at the Trust. The panel accepted Ms 2 s evidence that Mrs Lacanilao had not worked 3,787.5 hours at the Trust during her employment there, and that her declaration to the NMC indicating that she had was false. The panel therefore finds charge 2 proved on the balance of probabilities. Taken together, the panel considered that Mrs Lacanilao s declarations to the NMC as part of her application for readmission to the register were not a mistake, and that she knew that she had entered false information. In particular, in relation to charge 2, the panel noted that Mrs Lacanilao entered a lengthy description of her practice when she must have known that she had, in fact, only undertaken, at most, one shift. On this basis, the panel concluded that Mrs Lacanilao knowingly and deliberately sought to mislead the NMC, and that her entry was fraudulently procured. 11
Decision on direction Having determined that Mrs Lacanilao had incorrectly and fraudulently procured an entry on the NMC s register, the panel went on to decide what direction, if any, to make under Article 26(7) of the Nursing and Midwifery Order (2001) (the Order). Article 26(7) of the Order states: if the Investigating Committee is satisfied that an entry in the register has been fraudulently procured or incorrectly made, it may make an order that the Registrar remove or amend the entry and shall notify the person concerned of his right of appeal under article 38. Ms Wilshire submitted that this is a case where it would be wholly inappropriate for the panel to take no action. She submitted that the panel found that Mrs Lacanilao s misrepresentations were deliberate and misleading, and that her entry onto the NMC s register was procured by fraud. Ms Wilshire further submitted that there is nothing in Mrs Lacanilao s entry on the register that can be amended so as to rectify the incorrect information. In these circumstances, Ms Wilshire invited the panel to direct the Registrar to remove Mrs Lacanilao s entry from the register. The panel accepted the advice of the legal assessor. The panel considered that, having found that Mrs Lacanilao s entry on the NMC register was incorrectly made and fraudulently procured, it would be inappropriate to take no action. The panel noted that this was not a case whereby Mrs Lacanilao s entry could be amended by the Registrar. It further noted that Mrs Lacanilao had procured her entry on the register by making false, fraudulent statements regarding the amount of hours she had practised as a nurse. The panel considered that her actions in this regard were serious, and that to allow her to continue practising would undermine the reputation of the NMC as regulator. In all the circumstances, the panel decided that the only appropriate order is to direct the Registrar to remove Mrs Lacanilao s entry from the register. 12
Mrs Lacanilao will be notified of the panel s decision in writing. Mrs Lacanilao has the right to appeal the decision under Article 38 of the Order. This order cannot take effect until the end of the appeal period (28 days from the date of the notice of the decision) or, if an appeal is made, before the appeal has been concluded. 13
Decision on interim order Having directed that the Registrar remove Mrs Lacanilao s entry from the register, the panel then considered whether an interim order was required under Article 26(11) of the Order, in relation to the appeal period. The panel heard and accepted the legal assessor s advice. Ms Wilshire made an application for the imposition of an interim suspension order for 18 months. In doing so, she submitted that such an interim order is necessary on public protection grounds and to uphold the wider public interest, so as to maintain the integrity of the NMC s register. Ms Wilshire further submitted that, as Mrs Lacanilao has not completed the necessary hours of nursing practice, she may pose a risk to the public. The panel heard and accepted the advice of the legal assessor. In reaching its decision on whether to impose an interim order, the panel had regard to the reasons set out in its decision on the facts and its decision to direct the Registrar to remove Mrs Lacanilao s entry from the register. It also had regard to the NMC s published guidance on fraudulent and incorrect entry cases. It noted that the imposition of an interim order is not an automatic outcome but is a matter for the panel s discretion in the circumstances of the case, having regard to the public interest in maintaining the integrity of the register. It also had regard to Article 31 of the Order and the NMC s guidance on interim orders. The panel considered its earlier findings and decided that an interim order is necessary for the protection of the public and is otherwise in the public interest. The panel had regard to the seriousness of the facts found proved and the reasons set out in its decision. To do otherwise would be incompatible with its earlier findings. The panel next considered whether to impose an interim conditions of practice order, and determined that an interim conditions of practice order is not workable or appropriate in this case. 14
Accordingly, the panel determined that an interim suspension order is necessary to protect the public, and is otherwise in the public interest to protect the reputation of the profession and the NMC as its regulator. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined. If no appeal is made then the interim order will lapse upon the removal of Mrs Lacanilao s entry in the register 28 days after she is sent the decision of this hearing in writing. That concludes this determination. 15