Conduct and Competence Committee Substantive Hearing Tuesday 15 Tuesday 22 November 2016 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of Registrant Nurse: NMC PIN: Part(s) of the register: Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Miss Sharon Vitalis 99K1133O Registered Nurse Sub Part One Adult Nursing 9 November 1999 England Misconduct Mr Pradeep Khuti (Chair, Lay member) Ms Carla Hartnell (Registrant member) Ms Wilma Hainsworth (Lay member) Mr Paul Hester Panel Secretary: Ms Lesley Rudd (15-18 November 2016) Miss Bose Kayode (21-22 November 2016) Nursing and Midwifery Council: Representation: Represented by Mr Tom Orpin-Massey, counsel, instructed by NMC Regulatory Legal Team. Ms Vitalis was present and represented by Mr David Lemer, counsel, instructed by the Royal College of Nursing (RCN) Facts proved: 1, 2, 3, 3.1, 3.2, 4, 5, 5.1, 5.2, 6, 7, 8, 9, 9.1, 9.2, 10 and 11. Facts not proved: Fitness to practise: Sanction: Interim Order: N/A Impaired Striking off order Interim suspension order 18 months 1
Details of charge: That you, a Registered Nurse: 1. Between 13 August 2005 and March 2013, failed to notify your employer the Queen Mary Sidcup NHS Trust (subsequently South London Healthcare NHS Trust) [ The Trust ] that you did not have the right to work in the UK. 2. Your actions at charge 1 above were dishonest in that you sought to conceal from your employer that you did not have the right to work in the UK. 3. In respect of your application for a Band 5 Staff Post in the Accident and Emergency Department at Queen Mary s Sidcup: 3.1. Stated in your application form dated 23 July 2008 that you did not require a work permit to work in the United Kingdom. 3.2. At your interview on 15 September 2008 you stated that you did not require a work permit to work in the UK 4. Your actions at charge 3.1 and/ or 3.2 above were dishonest in that you sought to create the impression that you were entitled to work in the UK when you were not so entitled. 5. In respect of your application for a Band 5 Staff Nurse position on Ruxley Ward in 2009 you: 5.1. Stated on your application form submitted on or around 21 April 2009 that you were a UK, European Community (EC) or European Economic Area (EEA) National 5.2. At your interview on 1 May 2009 you stated that you did not require a work permit to work in the UK 2
6. Your actions at charge 5.1 and/ or 5.2 above were dishonest in that you sought to create the impression that you were entitled to work in the UK when you were not so entitled. 7. On or around 19 April 2013 you attempted to obtain work from the Trust s Bank whilst suspended from employment by the Trust. 8. Your actions in charge 7 were dishonest in that you attempted to obtain work from the Trust s Bank when you knew that you were suspended. 9. In respect of your application for a post as a staff nurse position with BUPA: 9.1. On 20 November 2013 during a telephone interview claimed that you did not need a work permit or Visa to work in the United Kingdom 9.2. On or around 6 December 2013 you signed terms and conditions of employment for BUPA in which you accepted that you were entitled to work in the UK without any additional approvals. 10. Your actions in charge 9.1 and / or 9.2 were dishonest in that you sought to create the impression that you were entitled to work in the UK when you were not so entitled. 11. Between 10 February 2014 and 2 January 2015 continued to work for BUPA Care Services in the knowledge that you were expressly forbidden from working in the United Kingdom. And, in light of the above, your fitness to practise is impaired by reason of your misconduct. 3
Background: The charges initially arose whilst you were employed as a Registered Nurse by Queen Mary Sidcup NHS Trust (subsequently South London Healthcare NHS Trust) ( the Trust ). It is alleged that, between 12 July 2005 and 7 June 2013, you were employed as a Band 5 Staff Nurse whilst not having indefinite leave to remain in the United Kingdom ( UK ) and, consequently, no legal entitlement to work in the UK. It is also alleged that whilst suspended from your employment with the Trust, you sought work as a Bank Nurse with the same Trust. It is further alleged that having left the employment with the Trust on 7 June 2013, you sought employment with BUPA as a Staff Nurse whilst again having no legal entitlement to work in the UK. 4
Decision on the findings on facts and reasons: In reaching its decisions, the panel had regard to all of the evidence in this case together with the submissions made by Mr Orpin-Massey, on behalf of the NMC and those made by Mr Lemer on your behalf. The panel heard and accepted the advice of the legal assessor. The panel noted that the burden of proof lies with the NMC and that the standard of proof applicable is the civil standard, namely the balance of probabilities. The panel heard sworn evidence from one witness called on behalf of the NMC: Ms A, Executive Officer for the Home Office. The written statements of Ms B, HR Manager for Lewisham and Greenwich NHS Trust, Mr C, Local Counter Fraud Specialist and Ms D, employed by Bupa as a Team Manager in Manager Advisory Services were accepted by you and read into the record. The panel also heard evidence from you under oath. The panel considered Ms A s evidence to be specific in nature; she produced documents that related to facts she had obtained from the Home Office Records. The panel found her evidence to be helpful and supportive. She properly recognised the limited areas of her contribution. Overall, the panel found her to be sound, professional and credible. In hearing your evidence, the panel assessed you as an experienced nurse who presented as being confident and intelligent. The panel noted that you made no challenge to the documentary evidence. In your responses to this documentation the panel found your answers to be unrealistic and evasive in nature and lacking credibility. 5
Charge 1: 1. Between 13 August 2005 and March 2013, failed to notify your employer the Queen Mary Sidcup NHS Trust (subsequently South London Healthcare NHS Trust) [ The Trust ] that you did not have the right to work in the UK. This charge is found proved. In reaching this decision, the panel took account of all of the evidence before it. The panel noted that you entered the UK for the second time, in or about January 2001 and were granted Leave to Enter as a Visitor for 6 months or less until 12 July 2001 on the condition that you were prohibited from working. On 3 July 2001 Homerton Hospital NHS Trust made an application on your behalf to the Home Office for an extension to stay in the UK as a Work Permit Holder to work within the National Health Service (NHS). On 13 July 2001 you were granted Leave to Remain as a Work Permit Holder until 12 July 2005, a period of 48 months on condition that work and any changes must be authorised. The panel heard evidence that you had made an application on 11 July 2005 (received by the Home Office 19 July 2005) for Indefinite Leave to Remain on the basis that you had completed 4 years as a work permit holder. This application was refused on 13 August 2005 on the grounds that you had had two absences from the UK totalling 7 months which meant that you had not spent the required continuous 4 years in the UK. The panel heard from Ms A that you could not appeal this decision as it had been made after your initial permit to work, granted 13 July 2001, had expired. On an unknown date, you left the UK and subsequently returned on 6 May 2007. Upon entering the UK, you were granted leave to enter until 6 November 2007 on condition that work was prohibited. This was the third occasion that you entered the UK and were granted Leave to Enter as a Visitor on condition that work was prohibited. 6
Sometime before 19 September 2007 you instructed solicitors who made an application on your behalf for a British Passport. The Home Office replied to your solicitors on 19 September 2007 refusing your application and stating that Citizenship is a matter of law which can be determined conclusively only by the courts. The panel had close regard to a clear copy of your application form for a Band 5 Staff Nurse post in the A&E Department of the Trust, which you completed on 23 July 2008. In this application form you stated in manuscript that you did not require a work permit to work in the UK. The application form included a typed declaration as to the accuracy of the information provided by you to the Trust. You signed this declaration. When you were interviewed for the post on 15 September 2008, you re-iterated that you did not require a work permit to work in the UK. You were employed by the Trust on a permanent basis on 25 November 2008. On 25 November 2008 a second application for Indefinite Leave to Remain was made on your behalf by a second firm of solicitors. This application remains outstanding to this day. On or around 21 April 2009, you applied for a Band 5 Staff Nurse Position on the Ruxley Ward in the Trust. In the application form you were asked if you were a UK, EC or EEA national to which you answered Yes. This application form, like the application form of 23 July 2008, included a declaration as to the truthfulness of your information. The panel noted that whilst it did not see your signature, you did tick the declaration box confirming the accuracy of the information that you supplied, as your application appears to have been made online. The panel noted, in any event, that you did not challenge the allegation that you completed and submitted the application form. You were interviewed for the post on the Ruxley Ward on 1 May 2009. You were asked whether you required a work permit to work in the UK and you answered No. 7
The panel carefully considered your evidence. You stated that you did not associate your immigration status with your right to work in the UK and you have always considered yourself as British. Your focus concerning documentation was in relation to travel and entry into the UK and not in relation to the question of entitlement to work. The panel noted that this charge alleges that you failed to notify the Trust that you did not have right to work in the UK. The panel considered that each of the two application forms placed a clear duty upon you to fully and frankly disclose your work status in the UK. Furthermore, in both interviews you re-iterated that you did not require a work permit to work in the UK. The panel noted that you did not challenge the evidence and accepted the documentation that Ms A provided. The panel determined that your account was not credible given the history of restrictions placed on your right to work when you entered the UK on each occasion; two refusals of Indefinite Leave to Remain; your instruction of two separate firms of solicitors; and the refusal of a British Passport application and in respect of your contention that you were not aware that you did not have the right to work in the UK. Accordingly, the panel found Charge 1 proved. 8
Charge 2: 2. Your actions at charge 1 above were dishonest in that you sought to conceal from your employer that you did not have the right to work in the UK. This charge is found proved. The panel noted the two stage test to be applied when considering an allegation of dishonesty. The panel firstly determined whether on the balance of probabilities you acted dishonestly by the standards of ordinary and honest members of the nursing profession; and, if it finds that you did so, must then go on to determine whether it is more likely than not that you realised that what you were doing was by those standards, dishonest. The panel had close regard to the full history and chronology in this matter up to March 2013. The panel noted that you arrived in the UK on 11 December 1996 and were granted leave to enter as a visitor for six months. This was on the condition that you did not work in the UK. In or about January 2001 you again entered the UK and were granted leave to enter as a visitor for six months or less until 12 July 2001 on condition that work was prohibited. On 3 July 2001, you applied to the Home Office for an extension of stay in the UK as a work permit holder to work within the NHS. This application was submitted on your behalf by Homerton Hospital NHS Trust. This application was granted and you were allowed a work permit until 12 July 2005. In November 2004 you legally started work as a Band 5 Staff Nurse. On 11 July 2005, you submitted an application to the Home Office for Indefinite Leave to Remain in the UK following completion of four years as a work permit holder. This application was made the day before the expiration of your work permit and was received by the Home Office on 19 July 2005. Your application was refused by the Home Office on 13 August 2005 on the grounds that you had had two absences from the UK totalling seven months and had not therefore spent the required continuous four years in the UK. The decision did not attract a 9
right of appeal as your application was received by the Home Office on 19 July 2005 after the expiry of your 48 month work permit on 12 July 2005. Thereafter, you left the UK. On 6 May 2007, you entered the UK and were granted leave to enter as a visitor until 6 November 2007 on condition that you did not work. You then instructed solicitors to assist you in applying to the Passport Office for a British Passport. This application was refused by the Passport Office and you were referred to the Home Office. On 19 September 2007 the Home Office wrote to your solicitors stating that you were not, in their view, entitled to British Nationality and that citizenship is a matter of law which can be determined conclusively only by the courts. The panel noted at this stage that you had the benefit of professional legal advice. On 23 July 2008, you applied for a Band 5 Staff Nurse post at the A & E Department of the Trust and stated in your application form that you did not require a work permit to work in the UK. Following your application you were employed by the Trust on a permanent basis from November 2008. On 25 November 2008, you instructed different solicitors to apply to the Home Office for Indefinite Leave to Remain in the UK. This application remains currently outstanding. The panel noted that this was the second firm of solicitors that you had instructed in relation to your nationality and status in the UK. On 21 April 2009 you completed an application form for a Band 5 Staff Nurse Position on the Ruxley Ward and stated that you were a UK / EC / EEA national. The panel noted that when you entered the UK in December 1996 and in or around January 2001 that you did so on the condition that you could not work. The application which you made in July 2001 was effectively sponsored by Homerton Hospital NHS Trust. This application was for a work permit. The work permit was granted to you for a period of 48 months. You made an application on 11 July 2005 for Indefinite Leave to Remain, which was the day before the work permit expired. Thereafter, you instructed two separate firms of solicitors who sought to assist 10
you to firstly obtain a British Passport and secondly Indefinite Leave to Remain. It is against this background that you made your two applications to the Trust. [PRIVATE] Thereafter, you did not return to the UK until 11 December 1996 when you entered the UK with a St Vincent Passport in your own name and were granted leave to enter as a visitor. You further told the panel that you were one of several siblings, all of whom were born in the UK and have British Nationality. Consequently, you told the panel that you are the only member of your immediate family who does not have British Nationality. In these circumstances, you stated that whilst you did not have British Nationality, you nevertheless, because of this background, feel that you are British and entitled to work in the UK without restriction. The panel firstly considered whether on the balance of probabilities you acted dishonestly by the standards of ordinary and honest nurses. The panel considered, in light of the above clear documentary evidence, that ordinary and honest nurses, knowing the full facts, would conclude your actions to be dishonest. The panel then went on to consider whether it is more likely than not that you realised what you were doing by the standards of ordinary and honest nurses, dishonest. The panel carefully considered your evidence. You stated that you did not associate your immigration status with your right to work in the UK as you have always considered yourself to be British. You state that you did not notice or pay attention to the leave to enter as a Visitor stamped in your St Vincent and Grenadines Passport as a visitor with restrictions on employment and claiming benefits. You further stated that although you raised the issue of travel to Homerton Hospital HR, you were not informed or given any documentation relating to the Work Permit. You said you became aware of the 48 month period by other means. Furthermore, you stated that you did not receive the refusal of 13 August 2005 as it was sent to your sister s address. The panel considered your evidence to be neither plausible nor credible. The panel considered, in light of you entering the UK on two occasions, being sponsored by Homerton Hospital NHS Trust, making applications to the Home Office and Passport Office and instructing two firms of solicitors, that you could not have overlooked the importance of your work status prior to the 11
refusal of a work permit on 13 August 2005. The panel also considered that it was not credible that you would not have received an important document sent to a close relative at an address you would have provided, nor that you, as an intelligent and experienced Registered Nurse, did not take notice or account of the Visitor Leave to Enter stamp on your St Vincent and Grenadines Passport, on your entry into the UK and its restrictions. In all the circumstances Charge 2 is proved. 12
Charge 3: 3. In respect of your application for a Band 5 Staff Post in the Accident and Emergency Department at Queen Mary s Sidcup: 3.1 Stated in your application form dated 23 July 2008 that you did not require a work permit to work in the United Kingdom. This charge is found proved. In reaching this decision, the panel viewed and took account of the Application Form including the declaration of truth contained within which you completed on 23 July 2008. In your sworn evidence you accepted this. In these circumstances Charge 3.1 is proved. 3.2 At your interview on 15 September 2008 you stated that you did not require a work permit to work in the UK This charge is found proved. In reaching this decision, the panel viewed and took account of the Record of Interview notes dated 15 September 2008. Whilst this was completed by the interviewer, there is no ambiguity as to your reply. In your sworn evidence you accepted this. In these circumstances Charge 3.2 is proved. 13
Charge 4: 4. Your actions at charge 3.1 and/ or 3.2 above were dishonest in that you sought to create the impression that you were entitled to work in the UK when you were not so entitled. This charge is found proved in respect of 3.1 and 3.2. In reaching this decision the panel took account of all of the evidence and history before it which included the facts set out under Charge 2 of this decision. The panel followed the two stage test to be applied when considering an allegation of dishonesty. The panel firstly determined whether on the balance of probabilities you acted dishonestly by the standards of ordinary and honest members of the nursing profession; and, if it finds that you did so, must then go on to determine whether it is more likely than not that you realised that what you were doing was by those standards, dishonest. The panel noted that by 15 September 2008 (your interview) you had entered the UK as a visitor on three occasions with no right to work, had a work permit granted until 12 July 2005 and an application for Indefinite Leave to Remain (19 July 2005) refused and further had an application for a British passport refused. The panel concluded that in completing the application form and answering that you did not require a work permit in interview would be viewed on the balance of probabilities by ordinary and honest nurses as dishonest. Further having taken into account all of your history to 15 September 2008 with the Home Office, the panel concluded that it is more likely than not that you knew your answers to be incorrect and this was dishonest. In those circumstances the panel has found charge 4 proved in respect of 3.1 and 3.2. 14
Charge 5: 5. In respect of your application for a Band 5 Staff Nurse position on Ruxley Ward in 2009 you: 5.1 Stated on your application form submitted on or around 21 April 2009 that you were a UK, European Community (EC) or European Economic Area (EEA) National This charge is found proved. In reaching this decision, the panel viewed and took account of the Application Form including the declaration of truth contained within which you completed on 21 April 2009. In your sworn evidence you accepted this. In these circumstances Charge 5.1 is proved. 5.2 At your interview on 1 May 2009 you stated that you did not require a work permit to work in the UK This charge is found proved. In reaching this decision, the panel viewed and took account of the Record of Interview notes dated 1 May 2009. Whilst this was completed by a third person, there is no ambiguity as to your reply. In your sworn evidence you accepted this. In these circumstances Charge 5.2 is proved. 15
Charge 6: 6. Your actions at charge 5.1 and/ or 5.2 above were dishonest in that you sought to create the impression that you were entitled to work in the UK when you were not so entitled. This charge is found proved in respect of 5.1 and 5.2. In reaching this decision the panel took account of all of the evidence and history before it which included the facts set out under Charge 2 of this decision. The panel noted the two stage test to be applied when considering an allegation of dishonesty. The panel firstly determined whether on the balance of probabilities you acted dishonestly by the standards of ordinary and honest members of the nursing profession; and, if it finds that you did so, must then go on to determine whether it is more likely than not that you realised that what you were doing was by those standards, dishonest. The panel concluded that in completing the application form and answering that you did not require a work permit in interview would be viewed on the balance of probabilities by ordinary and honest nurses as dishonest. Further having taken into account all of your history to 1 May 2009 with the Home Office and a further application for Indefinite Leave to Remain on 25 November 2008, the panel concluded that it is more likely than not that you knew your answers to be incorrect and this was dishonest. In those circumstances the panel has found Charge 6 is proved in respect of 5.1 and 5.2. 16
Charge 7: 7. On or around 19 April 2013 you attempted to obtain work from the Trust s Bank whilst suspended from employment by the Trust. This charge is found proved. On 22 March 2013, a notification of temporary admission to a person who is liable to be detained with no permission to work (IS96) was given to you at Gatwick Airport. On 28 March 2013, you instructed a third firm of solicitors to appeal a notice to a person liable to removal from the UK (form IS151a) which was also given to you at the airport. On 2 April 2013, you were given a further IS96 notice with an express and clear warning not to work in the United Kingdom or engage in any business until you are granted permission. The IS96 dated 2 April 2013 states in bold You are NOT allowed to work or engage in any business unless you have been explicitly granted permission to do so. Failure to comply with any of the above restrictions, without reasonable excuse, is a criminal offence. If these restrictions are to be changed, we will write to you. Thereafter, on 8 April 2013 you informed the Trust as to what happened at Gatwick Airport. Ms B with the Head of Nursing and the Emergency Department Matron had a meeting with you that day to discuss your work status with the Trust. You were verbally informed that you were suspended without pay and advised not to undertake paid employment. The evidence of Ms B was not challenged. The Trust sent you a letter by recorded delivery dated 9 April 2013. In your evidence you accepted that you received this letter. In this detailed letter, the Trust stated: During the period of suspension you must not undertake any paid employment including work for another organisation during the whole period of suspension. 17
The panel noted the contemporaneous email on 19 April 2013 from the Trust s Bank Coordinator to Ms B in which you requested bank shifts, I took a call from Sharon Vitalis this morning requesting available shifts for next week. I found a shift that she was interested in and as I was about to allocate her to the shift she asked if she was allowed to work as she was on unpaid leave [PRIVATE]. You told the panel that you were under the impression that contract and bank work were two different things and you were not aware that being suspended by the Trust meant that you could not undertake bank work. You told the panel that you contacted the bank to merely check whether you could do bank work and undertake work as you were under the impression that this was not related to your contract of employment with the Trust. The panel noted from the unchallenged statement of Ms B, that you did not tell the bank staff that you had been suspended. Rather, you told them you had been taking unpaid leave [PRIVATE]. You were not offered any shifts as the staff member checked the Trust s computer system which stated that you were suspended without pay. You accepted that you were suspended at the time and in the light of the contemporaneous email it is evident that you sought to obtain bank shifts. In those circumstances, Charge 7 is found proved. 18
Charge 8: 8. Your actions in charge 7 were dishonest in that you attempted to obtain work from the Trust s Bank when you knew that you were suspended. This charge is found proved. The panel followed the two stage test to be applied when considering an allegation of dishonesty. The panel firstly determined whether on the balance of probabilities you acted dishonestly by the standards of ordinary and honest members of the nursing profession; and, if it finds that you did so, must then go on to determine whether it is more likely than not that you realised that what you were doing was by those standards, dishonest. The panel noted the events set out in Charge 7 above. The panel noted that the letter sent to you from the Trust dated 9 April 2013 stated as follows: In light of this, it was explained to you that the Trust cannot keep you on payroll as to do so would mean the Trust would be in breach of immigration legislation. You said you understood this. You told the panel that you were under the impression that contract and bank work were two different things and were not aware that being suspended by the Trust meant that you could not undertake bank work. The panel determined that the letter of suspension on 9 April 2013 sent by recorded delivery and seen by you was unambiguous. It further considered that not only were you suspended from the Trust but that the letter made it clear that you could not work in the UK. This would cover not only full time contractual work but bank work as well. The panel further notes that by 2 April 2013 you had received two warnings in the form of IS96 notices prohibiting you from any work in the UK. 19
The panel considered that ordinary and honest nurses would on the balance of probabilities view your actions as dishonest. Further, the panel considered that not only were you suspended by the Trust, but the letter of suspension on 9 April 2013 was abundantly clear that you were suspended from the Trust and furthermore you should not work for any other organisation and that you must have realised at the time that you were acting dishonestly. In those circumstances the panel found charge 8 to be proved. 20
Charge 9: 9. In respect of your application for a post as a staff nurse position with BUPA: 9.1 On 20 November 2013 during a telephone interview claimed that you did not need a work permit or Visa to work in the United Kingdom This charge is found proved. The panel viewed and noted the telephone interview notes dated 20 November 2013. In the notes you were asked whether you require a visa or a permit to work in the UK. You answered No. In your sworn evidence, you did not challenge this. In all the circumstances Charge 9.1 is proved. 9.2 On or around 6 December 2013 you signed terms and conditions of employment for BUPA in which you accepted that you were entitled to work in the UK without any additional approvals. This charge is found proved. The panel noted the contract of employment, which you signed on 6 December 2013. The Terms and Conditions in the contract of employment included: By signing this letter you accept Bupa s terms and warrant that you are entitled to work in the UK in the capacity for which you are appointed without any additional approvals. In your sworn evidence, you did not challenge this. In all the circumstances Charge 9.2 is proved. 21
Charge 10: 10. Your actions in charge 9.1 and / or 9.2 were dishonest in that you sought to create the impression that you were entitled to work in the UK when you were not so entitled. This charge is found proved in respect of charge 9.1 and 9.2. The panel noted that you went to Gatwick Airport on 22 March 2013 to meet a member of your family. At the airport you were given three notices by immigration officials. The notices were as follows: -Notice to a Person Liable To Removal Form the United Kingdom (Form IS151a) as an overstayer; -a Decision To Remove An Illegal Entrant/Person Subject to Administrative Removal (Form IS151a Part 2); and -ISI96 being a Notification Of Temporary Admission To A Person Who Is Liable To be Detained, with no permission to work. On 28 March 2013 a third firm of solicitors submitted an appeal on your behalf to the Immigration Tribunal solely in respect of the IS151a Part 2 notice and stated, Please find enclosed Form IAFT-1 as an appeal to the Frist Tier Tribunal (Immigration and Asylum Chamber) against the enclosed decision of the UK Boarder Agency to remove my client form the United Kingdom. The appeal at the Immigration Tribunal was heard on 4 November 2013. The Home Office did not contest the appeal and your appeal was allowed solely in respect of the ISI151a Part 2 notice. At the appeal you were legally unrepresented. You informed the Tribunal Judge that the appeal proceedings had prevented you from working as a nurse. Consequently, the Tribunal Judge provided you with a copy of the record proceedings: 22
Appeal against a IS15APt2 Decision Popo [sic] accepts the decision unlawful. I therefore allow apps [sic] against decision In your sworn evidence, you stated that your understanding of the appeal hearing was that you were successful in respect of all three notices given to you at Gatwick airport. The panel noted that you had instructed solicitors in respect of the appeal. The panel carefully considered the record of proceedings document signed by the Immigration Judge and that it was clear that your appeal was successful only in respect of the IS151a Part 2 notice. In light of the record of proceedings document and the fact that you had instructed solicitors, the panel determined on the balance of probabilities, that you knew that you had not been successful in relation to the IS96 notice. The panel noted the history set out in its decision in respect of Charge 2 above and that there had been no evidential change in your status as to right of work within the UK. Therefore, to date you still do not have Indefinite Leave to Remain in the UK, or a British Passport and the IS96 dated 2 April 2013 is still in force. The panel considered that ordinary and honest nurses on the balance of probabilities would view your actions as dishonest. Further there was no material change in your circumstances in respect to your right to work and therefore you must have realised at the time, you were acting dishonestly. Accordingly the panel found Charge 10 proved in respect of charge 9.1 and 9.2. 23
Charge 11: 11. Between 10 February 2014 and 2 January 2015 continued to work for BUPA Care Services in the knowledge that you were expressly forbidden from working in the United Kingdom. This charge is found proved. The panel noted a screenshot of the BUPA employment summary in your name dated 2 January 2015 which shows that you started employment with BUPA on 10 February 2014 and finished 2 January 2015. You did not challenge this document. In reaching this decision, the panel took into account its earlier findings particularly charges 2, 9 and 10 which show that you had no right to work in the UK. The panel noted that charge 11 is as between 10 February 2014 and 2 January 2015 and that no new information was before it which indicated that your work status in the UK had changed. The panel noted that the IS96 notice dated 2 April 2013 which expressly stated: You are NOT allowed to work or engage in any business unless you have been explicitly granted permission to do so. This notice was in force during the period of this charge and remains in force today. In light of these findings and on the balance of probabilities, the panel concluded that you knew that you did not have a work permit whilst working for BUPA and therefore were expressly forbidden from working in the United Kingdom. Accordingly the panel found Charge 11 proved. 24
Determination on misconduct and impairment: Miss Vitalis, Having announced its findings on the facts, the panel considered whether the facts found proved amounted 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 without restriction. The panel has considered all of the evidence, together with the submissions made by Mr Orpin-Massey, on behalf of the NMC and those made by Mr Lemer, on your behalf. It had the opportunity to hear evidence from you again under oath. The panel was also provided by you with three character references and a reflective statement. In your sworn evidence, you adopted your reflective statement and acknowledged that you should not have worked at the time. You stated that you are not currently working and have not done so since 2 January 2015. You recognised that before doing so, you would need to resolve your leave to remain in the UK and to obtain permission from the Home Office in order to work in the UK. You stated that whilst you have accepted the panel s findings as to the facts, you do not believe that you were knowingly dishonest in your actions but instead that you may have been naïve. In his submissions Mr Orpin-Massey invited the panel to conclude that your actions constituted breaches of both The NMC code of professional conduct: standards for conduct, performance and ethics, 2004 and The code: Standards of conduct, performance and ethics for nurses and midwives 2008. He then directed the panel to the relevant sections which he submitted you had breached. 25
In considering the question of misconduct, Mr Orpin-Massey invited the panel to have regard to the decision of Roylance v GMC (No. 2) [2000] 1 AC 311 from which he quoted Lord Clyde s observations concerning misconduct: Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances. Mr Orpin-Massey referred to the panel s earlier findings on the facts and submitted that it found that you acted dishonestly over a period of time spanning August 2005 and January 2015. He submitted that you were aware that you were not entitled to work in the UK during that period, yet you went on to apply for three staff positions, two of those positions were within the NHS and one was with BUPA. He submitted that on the application forms you dishonestly misled those employers as to your right to work and in doing so exposed those employers to risk of criminal proceedings. Further, Mr Orpin-Massey submitted that when you were suspended, you sought dishonestly to obtain work from the Trust s Bank. Mr Orpin-Massey submitted that this can only be seen as serious misconduct and would be regarded by fellow practitioners as being deplorable and it is conduct that unquestionably brings the nursing profession into disrepute. He further submitted that the dishonesty is longstanding and persistent and that the reputation of the profession has been harmed as a consequence. He submitted that cumulatively the charges as found proved must amount to statutory misconduct. Moving to the issue of impairment, Mr Orpin-Massey submitted that you have been found to have been dishonest over a substantial period of time. In addition, the dishonesty was persistent through the various attempts that you made to apply for jobs. He referred to your reflective statement and stated that whilst you have accepted the panel s findings, you appear to maintain your position that you are not dishonest and that your actions were not dishonest in relation to the charges. 26
Mr Orpin-Massey submitted that the panel may be troubled as to the extent of genuine reflection and insight displayed by you. Accordingly, owing to past dishonesty, which is particularly serious in the context of the nursing profession, and the lack of true remorse or insight, he invited the panel to conclude that your fitness to practise is impaired. Mr Lemer made no submissions as to the question of misconduct and submitted that you accepted the likelihood of the panel reaching a decision that your actions amount to serious misconduct. In relation to impairment, Mr Lemer submitted that the underlying matter for the panel to take into account is the need to have regard to protecting the public and satisfying the wider public interest. He referred to the character references provided in your support and outlined the context and the circumstances surrounding your misconduct. Mr Lemer submitted that whilst you may have known that you were subject to immigration proceedings, you were in a form of denial. He submitted that there is no risk of repetition. Whilst the panel has found all of the dishonesty charges proved, he submitted that they all relate to the same matter, namely your immigration status. Mr Lemer submitted that you understand the severity of your dishonest actions. He stated that now that your immigration is in the open and that you are not working, there is little likelihood of you repeating your misconduct in the future. On that basis, he invited the panel to find that your fitness to practise is not impaired. The panel heard and accepted the advice of the legal assessor. The panel adopted a two stage process. The panel first considered whether the facts found proved amounted to misconduct and only if misconduct is established, would the panel then consider whether, in all the circumstances, your fitness to practise is currently impaired as a result of that misconduct. The panel firstly considered misconduct. 27
The panel had particular regard to the preamble and the provisions of both the 2004 and 2008 Codes. The panel concluded that, by reason of its findings of fact, your actions and behaviour breached the following paragraphs of the Codes as follows: 2004 Code Summary: Be trustworthy 1.2 As a registered nurse, midwife or specialist community public health nurse, you must: Act in such a way that justifies the trust and confidence the public have in you Uphold and enhance the good reputation of the professions. 1.5 You must adhere to the laws of the country in which you are 7.1 You must behave in a way that upholds the reputation of the professions. Behaviour that compromises this reputation may call your registration into question even if is not directly connected to your professional practice. 2008 Code Preamble: 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. 28
You must always act lawfully, whether those laws relate to your professional practice or personal life. Code: 49 You must adhere to the laws of the country in which you are practising. 61 You must uphold the reputation of your profession at all times. The panel bore in mind that not every act falling short of what would be proper in the circumstances, and not every breach of the Code, will be sufficiently serious that it can properly be described as misconduct. Accordingly, the panel had careful regard to the context and circumstances of the matters found proved. The panel decided that your conduct in failing to notify your employers that you did not have the right to work in the UK, a period spanning over nine years, was a failure to adhere to UK law and a repeated and significant breach of paragraph 49 of the 2008 Code. In addition, the panel considered that in acting as you did, you failed to uphold the reputation of the profession as stated in paragraph 61 of the 2008 Code. Whilst in your reflective piece you appear to realise the importance of being trustworthy, there is limited evidence to suggest that you understand the full implications of your actions and behaviour on colleagues, your employers at the time and on the nursing profession. On more than one occasion, you dishonestly withheld critical information as to your immigration status thereby obtaining paid employment from the NHS and BUPA. The panel considers your dishonesty to be a fundamental departure from the standard expected of a registered nurse and that your actions constituted a breach of a fundamental tenet of the profession in that honesty, integrity and trustworthiness are considered to be the bedrock of a nurse s practice. The panel concluded that by your dishonest actions you failed to uphold the reputation of your profession and that your behaviour fell seriously short of the standards reasonably expected of a nurse and were in the panel s view sufficiently serious to amount to misconduct. 29
The panel then went on to consider whether your fitness to practise is currently impaired by reason of your misconduct. In so doing, the panel took into account its duty to protect patients and its wider duty to satisfy the public interest, which includes the declaring and upholding of proper standards of conduct and behaviour, and the maintenance of public confidence in the profession and in the regulatory process. The panel had careful regard to the questions posed by Dame Janet Smith in her Fifth Shipman Report and referred to by Cox J in Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) as follows: 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: a. 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 is in no doubt that your misconduct falls into limbs, b, c and d listed above. The panel noted that you have fully engaged with the NMC proceedings. However, in giving your evidence, the panel was of the view that you lacked sufficient and meaningful insight into your misconduct. The panel considered that you were still reluctant to accept full responsibility for your actions. Instead, you sought to justify your behaviour rather than to demonstrate unequivocal remorse. You told the panel that you have not been working since 2015 and that you will resolve your immigration status. It took into consideration your sworn evidence and the three character 30
references provided in your support. The panel notes that there have been no issues of concern in regards to your clinical practice. The panel also acknowledged that you have reflected upon your actions. However, whilst you have apologised for your actions, the panel has heard very limited information from you as to the impact that your actions could have had on the reputation of the profession. The panel was not reassured by your reflective statement that you have fully reflected on your actions and is concerned that you have not addressed the fundamental aspects of your behaviour such as to satisfy the panel that there would be no further occurrence in the future. In addition, the panel was concerned by your lack of awareness as to the importance of being open and honest with your employers as to your immigration status. For these reasons, the panel concluded that your insight into your misconduct is limited. The panel next considered whether your misconduct is remediable. The panel noted that dishonesty is, by its very nature, not easily remediable. Having carefully considered your sworn evidence and reflective piece, the panel considered that you have not fully accepted your dishonesty nor the consequences of your misconduct upon your employers and the nursing profession. Consequently, the panel decided that there was little evidence of any remediation. The panel noted that your misconduct covered a period of over nine years. It considered that it was repeated, persistent and long standing. The dishonesty encompassed not only your immigration status and right to work in the UK but also covered dishonest and compounding actions after you were suspended by the Trust. The panel had regard to the letter of suspension dated 9 April 2013 which clearly informed you that you were suspended from work with the Trust and advised you that you were not legally entitled to work within the UK. Having received and read this letter you sought to obtain Bank work from the Trust. Thereafter, you obtained work from BUPA in the knowledge that you did not have permission to work within the UK. The panel concluded that your dishonesty was repeated, persistent and was related to both your immigration status and your suspension by the Trust. The panel noted that you have shown limited insight. Whilst the background to some of your dishonesty arose from a 31
particular set of circumstances, namely your immigration status, it was protracted, persistent and deep-seated. Consequently, the panel concluded that there is a real risk of repetition. The panel considered your actions in relation to the need to uphold profession standards and public confidence in the profession. Given the nature and extent of your dishonesty, the panel considered that proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made. Furthermore, the panel concluded that it is in the public interest to find your practice to be currently impaired in order to maintain public confidence in the nursing profession and the NMC as regulator and to declare and uphold professional standards. Accordingly, the panel finds that your fitness to practise is currently impaired. 32
Decision on sanction and reasons: Miss Vitalis, Having determined that your fitness to practise is currently impaired, the panel next considered what sanction, if any, it should impose on your registration. In reaching its decision on sanction, the panel has considered all of the information that has been placed before it including your sworn evidence, three references and your written reflective piece. The panel had regard to the submissions of Mr Orpin-Massey, on behalf of the NMC. He referred the panel to the NMC s Indicative Sanctions Guidance to Panels (ISG) and asked the panel to apply the principle of proportionality when considering sanction, starting with the least restrictive. Mr Orpin-Massey referred to the findings of dishonesty and invited the panel to have regard to the following cases; Bolton v Law Society [1994] EWCA Civ 32 and Parkinson v Nursing and Midwifery Council [2010] EWHC 1898 (Admin) when determining sanction. He asked the panel to consider the following various aggravating features which he submitted as relevant in this case: There were numerous allegations of dishonesty; The dishonest conduct went on for a period just short of a decade; The dishonesty took different forms, firstly in failing to notify your employer, and then in dishonest job applications; You put all of your employers at risk of prosecution for employing an illegal worker; You denied all the charges and contested them at this hearing; and You showed a lack of insight into your dishonesty at the impairment stage, maintaining that you had not acted dishonestly (albeit accepting the panel s determinations) Mr Orpin-Massey addressed the panel on the need to have regard to protecting the public and the wider public interest and submitted that determining the appropriate sanction is a matter for the panel s professional judgment. 33
Mr Lemer, on your behalf, also addressed the panel on the need to have regard to protecting the public, maintaining confidence in the profession and the declaring and upholding of proper standards. In addition, he asked the panel to balance the interests of the public with your interests. He referred to the case of Wisniewska v NMC [2016] EWHC 2672 (Admin), specifically paragraphs 29, 30 and 34. He submitted that your clinical practice had never been called into question and there is a public interest in allowing a nurse who is a safe, skilled and valued practitioner to return to practice. In regard to sanction, Mr Lemer referred the panel to the ISG and asked the panel to have regard to paragraphs 36-38 which deals with matters of dishonesty. Mr Lemer referred to the two most likely sanctions which included that of a suspension or a striking off order. He outlined for the panel the circumstances surrounding this case which he submitted are unusual. Mr Lemer submitted that you accept the panel s findings, however, it is your belief that your conduct was borne out of your strong but flawed belief that you are entitled to British citizenship. He submitted that since January 2015, there has been no repetition of the dishonest conduct and there is no significant risk of that conduct being repeated. Mr Lemer submitted that you know that without clear confirmation from the Home office you cannot work in the UK. Further, he submitted that your actions do not demonstrate a deepseated personality or attitudinal problem. He stated that there are no issues with regard to your clinical practice and you have taken steps to keep your practice up to date. Mr Lemer submitted that whilst the panel may wish to send a message to the public in terms of the public interest, he advanced the argument that there is a public interest in retaining the skills of an experienced and valued practitioner. In advancing this submission, he took the panel to paragraph 34 in the judgement of Wisniewska v NMC [2016] EWHC 2672 (Admin). In 34