Conduct and Competence Committee Substantive Hearing 10-12 May 2016 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of Registrant Nurse: Miss Emma Mary Kinsella NMC PIN: 97I6116E Part(s) of the register: Registered Adult Nurse Sub part 1 1 November 2000 Area of Registered Address: England Type of Case: Misconduct Panel Members: Robert Barnwell (Chair, Lay member) Wendy Warren (Registrant member) Carla Hartnell (Registrant member) Legal Assessor: David Marshall Panel Secretary: Keyorra Shrimpton Miss Kinsella: Not present and not represented Nursing and Midwifery Council: Represented by Claire Robinson, counsel, instructed by NMC Regulatory Legal Team. Facts proved: 1, 2, 3, 4 Facts not proved: None Fitness to practise: Sanction: Interim Order: Impaired Striking off order Interim suspension order 18 months Page 1 of 41
Background: It is alleged that while employed as a Band 8 Senior Nurse at Imperial College Healthcare NHS Trust (the Trust), Miss Kinsella, on various occasions throughout 2012-2013, dishonestly claimed for bank shifts as a band 5 or 6 nurse, that she had not worked. It is also alleged that Miss Kinsella used Mr 2 s computer login details to approve her bank shifts, which she alleged to have worked, in his absence. Miss Kinsella was interviewed under caution by counter fraud specialists, one of whom was Mr 3 on 1 October 2014. During the course of the counter fraud investigation, Miss Kinsella s records of the bank shifts she claimed to have worked were cross referenced against Miss Kinsella s swipe card entries from April 2012- August 2013. Furthermore, Miss Kinsella s email activity was analysed on those dates. Approximately 30-40 patient notes were analysed by Mr 3 for dates which Miss Kinsella claimed to be at work at the Trust working in the capacity as a Band 5 or 6 nurse on Valentine Ellis Ward (the ward). Miss Kinsella was also subject to a disciplinary hearing at the Trust. During the disciplinary hearing at the Trust, Miss Kinsella appears to have made certain admissions regarding her use of Mr 2 s login to authorise shifts. Page 2 of 41
Application to amend Charge 3, Charge 4, Schedule 1 and Schedule 2: Ms Robinson, on behalf of the Nursing and Midwifery Council (NMC), made an application to amend typographical errors in Charge 3, Schedule 1 and Schedule 2. Ms Robinson applied to amend Charge 3 as follows: 3. On one or more occasions provided in Schedule 2, used Colleague A s login in details to approve your bank shifts in his absence. Ms Robinson applied to amend Schedule 1 as follows: Schedule 1 Ref Date of shift 1 26 Monday, 9 April 2012 2 30 Sunday, 12 13 May 2012 3 32 Sunday, 26 August 2012 4 34 Sunday, 4 November 2012 5 37 Saturday, 1 December 2012 6. 38 Sunday, 2 December 2012 7 39 Saturday, 8 December 2012 8 40 Sunday, 9 December 2012 9 42 Sunday, 16 December 2012 10 44 Saturday, 26 January 2013 11 45 Saturday, 23 February 2013 12 47 Sunday, 10 March 2013 13 48 Saturday, 16 March 2013 14 50 Sunday, 28 April 2013 Page 3 of 41
15 51 Sunday, 9 June 2013 Ms Robinson applied to amend Schedule 2 as follows: Schedule 2 Ref Date of shift Date assigned and/or authorised 31 10 June 2012 1011 June 2012 32 26 August 2012 31 August 2012 08 October 2012 29 October 2012 33 3 November 2012 5 November 2012 34 4 November 2012 5 November 2012 44 22 January 2013 29 January 2013 48 16 March 2013 18 March 2013 49 27 April 2013 29 April 2013 50 28 April 2013 29 April 2013 51 9 June 2013 10 June 2013 Ms Robinson submitted that the application for the amendment to Charge 3 and Schedule 1 and Schedule 2 would more accurately reflect the charges, and the changes do not prejudice Miss Kinsella. She submitted that such amendments were to correct typographic inaccuracy on the part of the NMC, and that charges of this gravity should not be allowed to fall because of a mere slip in drafting. Ms Robinson submitted during the course of her closing submissions that there was a need to amend Charge 4. 4. Your actions, as set out in (2)(3) above were dishonest, in that, you knew Colleague A had not authorised the shifts. Page 4 of 41
Ms Robinson submitted that it is plain from the wording of the charge that it is referring to the behaviour being alleged in Charge 3 above. She submitted that the amendment would not alter, in any way, the dishonesty being alleged, and in no way does it prejudice Miss Kinsella. Having heard and accepted the advice of the legal assessor, the panel considered the application made by Ms Robinson. The panel had regard to Rule 28 of the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended 2012) ( the Rules ). It decided to allow Ms Robinson s application. The panel concluded that the amendments to Charge 3, Schedule 1 and Schedule 2 would render them factually accurate without altering their substance and that in the circumstances this would not be unjust to Miss Kinsella. In relation to the application to amend Charge 4, the panel considered that this was different from the amendment to Charge 3, Schedule 1 and Schedule 2. The panel accepted that this was a typographical change, however considered that this might appear to be more serious a change to an untrained legal eye. In considering Ms Robinson s application, the panel concluded that when reading the charges as a whole, it is clear that Charge 4 relates to the acts referred to in Charge 3, just as Charge 2 relates to the acts referenced in Charge 1. The panel concluded that such a change to Charge 4 would not cause injustice to Miss Kinsella. Accordingly, the panel accepted the application to amend Charge 3, Charge 4, Schedule 1 and Schedule 2. Details of charges (as amended): That you, a registrant nurse, whilst employed as a Band 8 Senior Nurse at Imperial College Healthcare NHS Trust ( the Trust ): 1. On one or more occasions as set out in Schedule 1, claimed for banks shifts which you did not work and/or did not work as a band 5 or 6 nurse. 2. Your actions, as set out in (1) above were dishonest, in that, you knew you had not worked during the shift(s) claimed and/or in the capacity as stated. Page 5 of 41
3. On one or more occasions provided in Schedule 2, used Colleague A s login details to approve your bank shifts in his absence. 4. Your actions, as set out in (3) above were dishonest, in that, you knew Colleague A had not authorised the shifts. And in the light of the above, your fitness to practise is impaired by reason of your misconduct. Schedule 1 Ref Date of shift 1 26 Monday, 9 April 2012 2 30 Sunday, 13 May 2012 3 32 Sunday, 26 August 2012 4 34 Sunday, 4 November 2012 5 37 Saturday, 1 December 2012 6. 38 Sunday, 2 December 2012 7 39 Saturday, 8 December 2012 8 40 Sunday, 9 December 2012 9 42 Sunday, 16 December 2012 10 44 Saturday, 26 January 2013 11 45 Saturday, 23 February 2013 12 47 Sunday, 10 March 2013 13 48 Saturday, 16 March 2013 14 50 Sunday, 28 April 2013 15 51 Sunday, 9 June 2013 Schedule 2 Page 6 of 41
Ref Date of shift Date assigned and/or authorised 31 10 June 2012 11 June 2012 32 26 August 2012 31 August 2012 08 October 2012 29 October 2012 33 3 November 2012 5 November 2012 34 4 November 2012 5 November 2012 44 22 January 2013 29 January 2013 48 16 March 2013 18 March 2013 49 27 April 2013 29 April 2013 50 28 April 2013 29 April 2013 51 9 June 2013 10 June 2013 Decision on Service of Notice of Hearing: The panel was informed at the start of this hearing that Miss Kinsella was not in attendance and that written notice of this hearing had been sent to Miss Kinsella s registered address by recorded delivery and by first class post on 23 March 2016. Royal Mail Track and Trace documentation confirmed this. 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 Kinsella s right to attend, be represented and call evidence, as well as the panel s power to proceed in her absence. The Track and Trace documentation indicated that the notice was delivered on 24 March 2016. Ms Robinson submitted the NMC had complied with the requirements of Rules 11 and 34 of the Rules. In coming to its decision, the panel had regard to Rules 11 and 34 of the Rules as follows: 11. (2) The notice of hearing shall be sent to the registrant Page 7 of 41
(b)..in every case, no later than 28 days before the date fixed for the hearing. 34. (1) Any notice of hearing required to be served upon the registrant shall be delivered by sending it by a postal service or other delivery service in which delivery or receipt is recorded to, (a)..her address in the register. The panel accepted the advice of the legal assessor. In the light of all of the information available, the panel was satisfied that Miss Kinsella has been served with notice of this hearing in accordance with the requirements of Rules 11 and 34 of the Rules. Decision on proceeding in the absence of the Registrant: The panel had regard to Rule 21 (2) (b) which states: Where the registrant fails to attend and is not represented at the hearing, the Committee...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... Ms Robinson invited the panel to continue in the absence of Miss Kinsella on the basis that she had voluntarily absented herself. Ms Robinson submitted that there had been no engagement at all by Miss Kinsella with the NMC, to her knowledge, in relation to these proceedings and, as a consequence, there was no reason to believe that an adjournment would secure her attendance on some future occasion. 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 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. Page 8 of 41
The panel has decided to proceed in the absence of Miss Kinsella. 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: no application for an adjournment has been made by Miss Kinsella; Miss Kinsella has not engaged with the NMC and has not responded to any of the letters sent to her about this hearing; Miss Kinsella has not provided the NMC with details of how she may be contacted other than her registered address; there is no reason to suppose that adjourning would secure her attendance at some future date; two witnesses have attended today to give live evidence; not proceeding may inconvenience the witnesses, their employers and, for those involved in clinical practice, the clients who need their professional services; the charges relate to events that occurred in 2012-2103; 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. There is some disadvantage to Miss Kinsella 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 Kinsella s decisions 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. Page 9 of 41
In these circumstances, the panel has decided that it is fair, appropriate and proportionate to proceed in the absence of Miss Kinsella. The panel will draw no adverse inference from Miss Kinsella s absence in its findings of fact. 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 Robinson on behalf of the NMC. The panel heard and accepted the advice of the legal assessor. 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. In reaching its decisions on the facts, the panel took into account all the oral and documentary evidence in this case. The panel heard live evidence from the following witnesses on behalf of the NMC: Mr 1: Currently employed as the Deputy Divisional Director of Nursing, Surgery, Cancer and Cardiovascular Services at Imperial College Healthcare NHS Trust ( the Trust ). As of 2014, Mr 1 became the Deputy Divisional Director of Nursing and held joint responsibility as Miss Kinsella s professional lead. Mr 2: Currently employed as a Patient Flow Manager for Surgery and Cancer at Portsmouth Hospital NHS Trust. At the time of the alleged incidents he was the Ward Manager for Valentine Ellis Ward. Miss Kinsella was Mr 2 s line manager. The panel also heard a further witness statement read into evidence, on behalf of the NMC: Page 10 of 41
Mr 3: Currently employed as a Local Counter Fraud Specialist at TIAA. At the time of the alleged incidents Mr 3 also held this position. In reviewing the oral evidence of Mr 1, the panel found him to be a consistent, credible and reliable witness of fact. The panel considered that he presented as an honest witness who gave a careful account on what he could remember in relation to the allegations against Miss Kinsella. The panel noted that Mr 1 gave reflective responses, and he did not try and hide behind any of the facts presented to him. The panel found that he was clearly intending to assist the panel to the best of his recollection. In reviewing the oral evidence of Mr 2, the panel found him to be a somewhat difficult witness who left the panel confused at times. The panel found Mr 2 to be naïve in relation to certain questioning. It considered that when asked questions of a general nature, Mr 2 would answer specifically in relation to Miss Kinsella. The panel found that Mr 2 did not always grasp the aspects of the case that it was trying to focus on, however it did not find that he was trying to be evasive. The panel found that Mr 2 elaborated on his answers when questioned about specific details. It also found that Mr 2 s answers often strayed into details that were a departure from the questions asked of him. The panel were grateful for Mr 2 s attendance and found him to be open and assisted the panel to the best that he could. The panel bore in mind that it may have been difficult for Mr 2 giving evidence against Miss Kinsella as she was his mentor, and they had formed a long trusting working relationship. In reviewing the written evidence of Mr 3, the panel noted that Miss Kinsella had not contacted the NMC to object to the witness statement of Mr 3 being read into evidence by Ms Robinson. The panel accepted that Miss Kinsella had been given an opportunity to contact the NMC if she had any objection to Mr 3 s witness statement being put before the panel. The panel did consider Mr 3 s witness statement to be of value because Mr 3 produced documents for the panel that was helpful to it, including a summary of Miss Kinsella s interview of caution. The panel noted that Miss Kinsella has not made any admissions in respect of the charges made against her. Page 11 of 41
The panel separately considered each charge and made the following findings: Charge 1: That you, a registrant nurse, whilst employed as a Band 8 Senior Nurse at Imperial College Healthcare NHS Trust ( the Trust ): 1. On one or more occasions as set out in Schedule 1, claimed for banks shifts which you did not work and/or did not work as a band 5 or 6 nurse. In relation to this charge the panel took into account the evidence of Mr 1, Mr 2 and Mr 3. Mr 1 told the panel in oral evidence that Mr 3 had provided him with a copy of the swipe card records for Miss Kinsella after his Counter Fraud Investigation. Mr 1 told the panel that he accepted the records of the swipe card entries, and accepted the email correspondence records. Mr 1 told the panel that during his internal investigation he did not interview any other employees, however he told the panel in addition to the information from Mr 3, he undertook a review of one or two patient records per shift amounting to 30-40 records of patients that would have been on the ward at the times that Miss Kinsella claimed to have worked. He stated there was no entry made by Miss Kinsella in those patient records. He also indicated that he would have expected to have found an entry in one of the random sample of records, particularly as the Trust would encourage staff to maintain notes contemporaneously may expect notes to be made more than once per shift. Mr 1 told the panel that attempts had been made at obtaining the allocation book for those shifts, however the allocation book had been archived, the archive number lost, and therefore, it was irretrievable. Mr 2 told the panel in oral evidence that there were situations where members of the ward did share swipe cards. Mr 2 told the panel that he had lent his swipe card to other employees on occasions but that he would not give it to them overnight. Mr 2 explained to the panel the authorisation system for claiming for bank and agency shifts, and the two separate computer systems, MAPS and REED to do so. Mr 2 stated that there were occasions where he would sign off the bank shifts on the system without paying close Page 12 of 41
attention to them in a checklist approach. Mr 2 indicated that he did not work on weekends so would not have been able to verify if Miss Kinsella was working those days, and if he was at work he could not remember if he had seen her or not. Mr 3 s witness statement gives reference to summary of interview with Miss Kinsella and Mr 2, a spreadsheet detailing Miss Kinsella s swipe card access on the ward and Miss Kinsella s timesheets. In considering the allegation as to whether on one or more occasions as set out in Schedule 1, whether or not Miss Kinsella claimed for bank shifts for which she did not work, the panel considered each date of shift as set out in Schedule 1 separately. The panel considered all the evidence before it in its entirety, in particular the reference made to the use of swipe card activity by Miss Kinsella, use of computer email activity by Miss Kinsella, evidence of no clinical notes recorded by Miss Kinsella on dates that she claimed for bank shifts on the dates indicated in Schedule 1 and Miss Kinsella s summary of interview under caution dated 19 December 2014. The panel considered that swipe card use on the ward was common when working on the ward and it was needed to gain access into and out of the ward and that every employee has their own card. The panel also considered that it was needed for entry for various facilities, for example. The panel accepted that there was the ability to tailgate other employees, could be buzzed in and that there is the opportunity to share swipe cards. The panel also noted that on many days that Miss Kinsella was at work, frequent swipe card activity was recorded for her. The panel also considered that Miss Kinsella, in her summary of interview, did state that when she was working clinically, she would not bring her swipe card. The panel found this difficult to understand if it was needed so frequently during the course of the day. The panel found it implausible that Miss Kinsella would disturb colleagues every time she needed to enter or leave the ward or to wait for someone to tailgate to gain access on a regular basis. The panel found the swipe card entry records helpful, it noted that it is not entirely reliable because it heard that the system could be abused to some degree. Page 13 of 41
The panel ascertained that there was no external access to the Trust s computer system outside of the workplace, as confirmed by Mr 1 and the IT Department in the Trust. The panel therefore found that on dates where emails were sent by Ms Kinsella, she was within the Trust premises, not necessarily on the ward. The panel concluded that recorded entries of emails being sent from Miss Kinsella s account indicate that she was at work at the Trust. The panel also considered the clinical records that were considered by Mr 1 in his internal investigation. The panel noted that sample taken may not have been the best way to consider clinical records at the time, but acknowledged that the allocation book was lost in archives. The panel found that should Miss Kinsella have been working as a band 5 nurse for which she claimed, then it is very unlikely that she would have made no clinical entries for her patients. There was no direct evidence of Miss Kinsella s absence from the ward on the relevant dates, however, the committee was satisfied that if she had been present, there would have been records of swipe card use or emails sent or entries in patient records. Each date was considered as follows: Ref Date of shift 1 26 Monday, 9 April 2012 The panel considered that on this date, there was no recorded swipe card record for Miss Kinsella, no documented evidence indicating that an email was sent from Miss Kinsella s computer login, and no evidence of any notes made by Miss Kinsella into patient records. The panel found that when looking at the swipe card records, produced in evidence by Mr 3, there is evidence of Miss Kinsella actively using her swipe card on Friday 6 April 2012, and Wednesday 11 April 2012. Page 14 of 41
The panel therefore concluded that it was more likely than not that Miss Kinsella was not at work on this date, and claimed for a bank shift for which she did not work. Ref Date of shift 2 30 Sunday, 13 May 2012 The panel considered that on this date, there was no recorded swipe card record for Miss Kinsella, no documented evidence indicating that an email was sent from Miss Kinsella s computer login, and no evidence of any notes made by Miss Kinsella into patient records. The panel noted that the shift claimed for was an 11.5 hour shift. It considered that if Miss Kinsella had been present on the ward there would have been some traceable evidence in the form of a swipe card entry, email or patient record for a shift of such long duration. The panel therefore concluded that it was more likely than not that Miss Kinsella was not at work on this date, and claimed for a bank shift for which she did not work. Ref Date of shift 3 32 Sunday, 26 August 2012 The panel considered that on this date, there was no recorded swipe card record for Miss Kinsella, no documented evidence indicating that an email was sent from Miss Kinsella s computer login, and no evidence of any notes made by Miss Kinsella into patient records. The panel noted that the shift claimed for was an 11.5 hour shift, and there would have been some traceable evidence of Miss Kinsella on the ward in the form of a swipe card entry, email or patient record for a shift of such long duration. Page 15 of 41
The panel therefore concluded that it was more likely than not that Miss Kinsella was not at work on this date, and claimed for a bank shift for which she did not work. Ref Date of shift 4 34 Sunday, 4 November 2012 The panel considered that on this date, there was no recorded swipe card record for Miss Kinsella, no documented evidence indicating that an email was sent from Miss Kinsella s computer login, and no evidence of any notes made by Miss Kinsella into patient records. The panel noted that the shift claimed for was an 11.5 hour shift, and there would have been some traceable evidence of Miss Kinsella on the ward in the form of a swipe card entry, email or patient record for a shift of such long duration. The panel also considered that there is evidence before it in the records of swipe card entry that where Miss Kinsella has worked on other dates, such as 2 November 2012, there is a copious amount of swipe card activity, indicating that when at work active swipe card use was common. The panel therefore concluded that it was more likely than not that Miss Kinsella was not at work on this date, and claimed for a bank shift for which she did not work. Ref Date of shift 5 37 Saturday, 1 December 2012 The panel considered that on this date, there was no recorded swipe card record for Miss Kinsella, no documented evidence indicating that an email was sent from Miss Kinsella s computer login, and no evidence of any notes made by Miss Kinsella into patient records. The panel noted that the shift claimed for was an 11.5 hour shift, and there would have been some traceable evidence of Miss Kinsella on the ward in the form of a swipe card Page 16 of 41
entry, email or patient record for a shift of such long duration. The panel therefore concluded that it was more likely than not that Miss Kinsella was not at work on this date, and claimed for a bank shift for which she did not work. Ref Date of shift 6 38 Sunday, 2 December 2012 The panel considered that on this date, there was no recorded swipe card record for Miss Kinsella, no documented evidence indicating that an email was sent from Miss Kinsella s computer login, and no evidence of any notes made by Miss Kinsella into patient records. The panel noted that the shift claimed for was an 11.5 hour shift, and there would have been some traceable evidence of Miss Kinsella on the ward in the form of a swipe card entry, email or patient record for a shift of such long duration. The panel therefore concluded that it was more likely than not that Miss Kinsella was not at work on this date, and claimed for a bank shift for which she did not work. Ref Date of shift 7 39 Saturday, 8 December 2012 The panel considered that on this date, there was no recorded swipe card record for Miss Kinsella, no documented evidence indicating that an email was sent from Miss Kinsella s computer login, and no evidence of any notes made by Miss Kinsella into patient records. The panel noted that the shift claimed for was an 11.5 hour shift, and there would have been some traceable evidence of Miss Kinsella on the ward in the form of a swipe card entry, email or patient record for a shift of such long duration. The panel also considered that on 10 December 2012, Miss Kinsella records 7 swipe card entries, which indicates Page 17 of 41
a more active use for someone who is on shift, and evidence of no swipe card entry indicates that she is less likely to be at work. The panel therefore concluded that it was more likely than not that Miss Kinsella was not at work on this date, and claimed for a bank shift for which she did not work. Ref Date of shift 8 40 Sunday, 9 December 2012 The panel considered that on this date, there was no recorded swipe card record for Miss Kinsella, no documented evidence indicating that an email was sent from Miss Kinsella s computer login, and no evidence of any notes made by Miss Kinsella into patient records. The panel noted that the shift claimed for was an 11.5 hour shift, and there would have been some traceable evidence of Miss Kinsella on the ward in the form of a swipe card entry, email or patient record for a shift of such long duration. The panel also considered that on 10 December 2012, Miss Kinsella records 7 swipe card entries, which indicates a more active use for someone who is on shift, and evidence of no swipe card entry indicates that she is less likely to be at work. The panel also found it difficult to understand why, if someone had forgotten their swipe card the day previously, they would forget to bring it again on the Sunday the next day. The panel therefore concluded that it was more likely than not that Miss Kinsella was not at work on this date, and claimed for a bank shift for which she did not work. Ref Date of shift 9 42 Sunday, 16 December 2012 The panel considered that on this date, there was no recorded swipe card record for Miss Kinsella, no documented evidence indicating that an email was sent from Miss Page 18 of 41
Kinsella s computer login, and no evidence of any notes made by Miss Kinsella into patient records. The panel noted that the shift claimed for was an 11.5 hour shift, and there would have been some traceable evidence of Miss Kinsella on the ward in the form of a swipe card entry, email or patient record for a shift of such long duration. The panel therefore concluded that it was more likely than not that Miss Kinsella was not at work on this date, and claimed for a bank shift for which she did not work. Ref Date of shift 10 44 Saturday, 26 January 2013 The panel considered that on this date, there was no recorded swipe card record for Miss Kinsella, no documented evidence indicating that an email was sent from Miss Kinsella s computer login, and no evidence of any notes made by Miss Kinsella into patient records. The panel noted the active use of Miss Kinsella s swipe card on each side of 26 January 2013. These dates were 25 January 2013 and 28 January 2013, where there were active swipe records on those dates. The panel therefore concluded that it was more likely than not that Miss Kinsella was not at work on this date, and claimed for a bank shift for which she did not work. Ref Date of shift 11 45 Saturday, 23 February 2013 The panel considered that on this date, there was recorded swipe card record for Miss Kinsella, but that there was no documented evidence indicating that an email was sent from Miss Kinsella s computer login, and no evidence of any notes made by Miss Kinsella into patient records. Page 19 of 41
The panel noted that on Miss Kinsella s time sheet for this date, her timesheet indicates that she started her shift at 07:30 and ended her shift at 20:00 that same day. The panel noted that the swipe record indicates entry on Saturday 23 February 2013 between 01:30 and 01:35am, which is outside the working hours that Miss Kinsella claimed for. The panel therefore concluded that it was more likely than not that Miss Kinsella claimed for a bank shift for which she did not work. Ref Date of shift 12 47 Sunday, 10 March 2013 The panel considered that on this date, there was no recorded swipe card record for Miss Kinsella, no documented evidence indicating that an email was sent from Miss Kinsella s computer login, and no evidence of any notes made by Miss Kinsella into patient records. The panel noted that the shift claimed for was an 11.5 hour shift, and there would have been some traceable evidence of Miss Kinsella on the ward in the form of a swipe card entry, email or patient record for a shift of such long duration. The panel therefore concluded that it was more likely than not that Miss Kinsella was not at work on this date, and claimed for a bank shift for which she did not work. Ref Date of shift 13 48 Saturday, 16 March 2013 The panel considered that on this date, there was no recorded swipe card record for Miss Kinsella, no documented evidence indicating that an email was sent from Miss Kinsella s computer login, and no evidence of any notes made by Miss Kinsella into patient records. Page 20 of 41
The panel therefore concluded that it was more likely than not that Miss Kinsella was not at work on this date, and claimed for a bank shift for which she did not work. Ref Date of shift 14 50 Sunday, 28 April 2013 The panel considered that on this date, there was no recorded swipe card record for Miss Kinsella, no documented evidence indicating that an email was sent from Miss Kinsella s computer login, and no evidence of any notes made by Miss Kinsella into patient records. The panel noted that the shift claimed for was an 11.5 hour shift, and there would have been some traceable evidence of Miss Kinsella on the ward in the form of a swipe card entry, email or patient record for a shift of such long duration. The panel therefore concluded that it was more likely than not that Miss Kinsella was not at work on this date, and claimed for a bank shift for which she did not work. Ref Date of shift 15 51 Sunday, 9 June 2013 The panel considered that on this date, there was no recorded swipe card record for Miss Kinsella, no documented evidence indicating that an email was sent from Miss Kinsella s computer login, and no evidence of any notes made by Miss Kinsella into patient records. The panel noted that the shift claimed for was an 11.5 hour shift, and there would have been some traceable evidence of Miss Kinsella on the ward in the form of a swipe card entry, email or patient record for a shift of such long duration. The panel therefore concluded that it was more likely than not that Miss Kinsella was Page 21 of 41
not at work on this date, and claimed for a bank shift for which she did not work. The panel reached the overall conclusions that it is more likely than not, on the balance of probabilities, that all of the dates in Schedule 1 indicate that Miss Kinsella was not at work when she claimed for bank shifts. Therefore on one or more occasions as set out in Schedule 1, Miss Kinsella claimed for bank shifts for which she did not work. Accordingly, this charge is found proved. Charge 2: 2. Your actions, as set out in (1) above were dishonest, in that, you knew you had not worked during the shift(s) claimed and/or in the capacity as stated. In relation to this charge the panel took into all of the particulars found proved in Charge 1. The panel considered that by making false claims for payment on bank shifts, Miss Kinsella acted dishonestly by the standard of ordinary and honest members of the profession, and that she would have realised that what she was doing was, by those standards, dishonest. Accordingly, this charge is found proved. Charge 3: 3. On one or more occasions provided in Schedule 2, used Colleague A s login details to approve your bank shifts in his absence. In relation to this charge the panel took into account the evidence of Mr 1, Mr 2 and Mr 3. Page 22 of 41
Mr 1 told the panel in oral evidence that there were two login systems on the Trust computer system; one for assigning shifts, and another login to authorise bank and agency shifts. Mr 1 told the panel that after these allegations came to light, upon reviewing the Counter Fraud Investigation Report dated 10 December 2014, the checks and balances with these systems were reviewed by HR as there was no formal Trust policy at the time of the alleged incidents in relation to the two separate systems. He told the panel it was done on a best practice basis. He told the panel that he was not familiar with a security policy in the ward. Mr 1 told the panel that at the disciplinary Trust hearing, Miss Kinsella admitted to using Mr 2 s login to approve shifts in his absence. Mr 1 confirmed there was no external access to email outside the Trust without authorisation from a line manager. Mr 2 explained that Miss Kinsella was his boss, and that he had placed a lot of trust in her. Mr 2 explained to the panel that there were two separate systems (MAPS then REED SYSTEM) for authorising bank shifts, and explained these in detail to the panel. Mr 2 told the panel in oral evidence that on the dates he was not present in the ward due to him being on a day off, annual leave, or at the Mentorship in Practice Course, he can be sure that he did not use the REED authorisation system to authorise Miss Kinsella s claimed bank shifts. Mr 2 explained that he may have authorised shifts for Miss Kinsella, and that she was in a position to allocate shifts to herself using her login. Mr 2 s evidence was that his login details were written in a diary which was kept in an unlocked drawer in a locked office. Miss Kinsella had access to the office and knew that his login details were kept there. Although some other people had access to the office, they would not have known what the login details were for. Mr 2 told the panel that on the dates where he was reported to be at work, he was scheduled to work 07:30-15:30 Monday to Friday. He told the panel that he would stay late to complete clinical duties to stay late as he had a demanding role, and that if the ward was understaffed he may stay until 19:30 until handover. Mr 3 s witness statement gives reference to summary of interview with Miss Kinsella and Mr 2, a spreadsheet detailing Miss Kinsella s swipe card access on the ward and Page 23 of 41
Miss Kinsella s timesheets. Mr 1 s witness statement indicated, Emma admitted that [Mr 2] did not sign off the shifts in dispute. Although she initially denied using [Mr 2 s] password to authorise her shifts, she subsequently admitted during the hearing that she had used his passwords to sign off the shifts. The panel considered that there were incidents where Mr 2 was not present on the ward at all because he was on a day off, on annual leave or at a Mentorship in Practice Course, as stated in oral evidence by him and confirmed in the off duty rota. The panel also considered that there were incidents where Mr 2 was present on the date that Miss Kinsella s bank shifts were assigned and/or authorised, however it is probable that Mr 2 had left his shift, and the Trust by that time, as indicated by his lack of swipe activity. The panel also considered that there were dates where Miss Kinsella herself had no recorded swipe activity, but that she had authorised her shifts in the computer system on those occasions, as evidenced by the swipe card entries for both PULSE and REED Agencies in the Counter Fraud Investigation Report dated 10 December 2014. The panel considered the following dates in the column labelled Date assigned and/ or authorised in Schedule 2 individually, as set out below: Ref Date of shift Date assigned and/or authorised 31 10 June 2012 11 June 2012 The panel noted that Miss Kinsella has swipe records that indicate she was on the ward from 07:56 until 18:44 on this date. The panel also noted Mr 2 s swipe card record on that date, which indicated that he was on the ward from 07:20 to 14:11. The panel considered that although Mr 2 gave evidence that he would often stay late past his usual shift finish time of 15:30, it would be unusual for Mr 2 to be authorising a shift at 16:15, and that if he was on the ward then he would be doing clinical duties and not authorising bank shifts. The panel concluded that it was more likely than not, on the balance of probabilities, that Miss Kinsella used Mr 2 s login details to approve her bank shift in his absence. Page 24 of 41
Ref Date of shift Date assigned and/or authorised 32 26 August 2012 31 August 2012 The panel noted that Miss Kinsella has swipe records that indicate she was on the ward until 20:38 on this date. The panel also noted Mr 2 s swipe card record on that date, which indicated that he was on the ward from 07:16 to 15:27. The panel considered that although Mr 2 gave evidence that he would often stay late past his usual shift finish time of 15:30, it would be unusual for Mr 2 to be authorising a shift at 20:38, as he stated in oral evidence that he would not likely to have stayed past handover at 19:30. The panel concluded that it was more likely than not, on the balance of probabilities, that Miss Kinsella used Mr 2 s login details to approve her bank shift in his absence. Ref Date of shift Date assigned and/or authorised 08 October 2012 29 October 2012 The panel noted that Miss Kinsella has swipe card records on this date. The panel also noted Mr 2 s swipe card record on that date, which indicated that he was on the ward from 07:19 to 16:50. The time of authorisation by Mr 2 on this date was at 17:16. The panel was not satisfied on the balance of probabilities, that Miss Kinsella used Mr 2 s login details to approve her bank shift. Ref Date of shift Date assigned and/or authorised 33 3 November 2012 5 November 2012 Page 25 of 41
The panel noted that Miss Kinsella has no swipe card records for this date. The panel also noted that Mr 2 stated in oral evidence that he was not working, so could not have authorised this shift on this date. The panel also considered the off duty rota which indicated Mr 2 had a day off on this date. The panel accepted that Mr 2 was not present at the ward that day. The panel found that although Miss Kinsella had no swipe card records, she was present on the ward because she had made a retrospective entry on that date at 10:20am, and the shift was authorised by a person using Mr 2 s account at 15:07. The panel concluded that it was more likely than not, on the balance of probabilities, that Miss Kinsella used Mr 2 s login details to approve her bank shift in his absence. Ref Date of shift Date assigned and/or authorised 34 4 November 2012 5 November 2012 The panel noted that Miss Kinsella has no swipe card records for this date. The panel also noted that Mr 2 stated in oral evidence that he was not working, so could not have authorised this shift on this date. The panel also considered the off duty rota which indicated Mr 2 had a day off on this date. The panel accepted that Mr 2 was not present at the ward that day. The panel found that although Miss Kinsella had no swipe card records, she was present on the ward because she had made a retrospective entry on that date at 10:20am, and the shift was authorised by Mr 2 s account at 15:07. The panel concluded that it was more likely than not, on the balance of probabilities, that Miss Kinsella used Mr 2 s login details to approve her bank shift in his absence. Ref Date of shift Date assigned and/or authorised 44 22 January 2013 29 January 2013 Page 26 of 41
The panel noted that Miss Kinsella has no swipe card records for this date. The panel also noted Mr 2 s swipe card record on that date, which indicated that he was on the ward from 07:21 to 16:57. The panel considered that although Mr 2 gave evidence that he would often stay late past his usual shift finish time of 15:30, it would be unusual for him to be authorising a shift at 19:09, and that if he was on the ward then he would be doing clinical duties and not authorising bank shifts. He also stated that if he was to stay late, he would usually leave by 17:00. The panel concluded that it was more likely than not, on the balance of probabilities, that Miss Kinsella used Mr 2 s login details to approve her bank shift in his absence. Ref Date of shift Date assigned and/or authorised 48 16 March 2013 18 March 2013 The panel noted that Miss Kinsella has no swipe card records for this date. The panel also noted that Mr 2 stated in oral evidence that he was not working as he would have been on annual leave, although he could not pinpoint the exact date, but accepted that if the rota indicated he was on annual leave then could not have authorised this shift on this date. The panel also considered the off duty rota which indicated Mr 2 had annual leave on that date. The panel accepted that Mr 2 was not present at the ward that day. The panel found that although Miss Kinsella had no swipe card records, she was present on the ward because she had made a retrospective entry on that date at 08:48 and the shift was authorised by Mr 2 s account at 16:00. The panel concluded that it was more likely than not, on the balance of probabilities, that Miss Kinsella used Mr 2 s login details to approve her bank shift in his absence. Page 27 of 41
Ref Date of shift Date assigned and/or authorised 49 27 April 2013 29 April 2013 The panel noted that Miss Kinsella has no swipe card records for this date. The panel also noted that Mr 2 stated in oral evidence that he was not working as he would have been on his Mentorship in Practice Course, although he could not pinpoint the exact date, but accepted that if the rota indicated he was on his Mentorship in Practice Course then could not have authorised this shift on this date. The panel also considered the off duty rota which indicated Mr 2 was away on that date. The panel accepted that Mr 2 was not present at the ward that day. The panel found that although Miss Kinsella had no swipe card records, she was present on the ward because she had a retrospective entry on that date at 09:38, and the shift was authorised by Mr 2 s account at 12:04. The panel concluded that it was more likely than not, on the balance of probabilities, that Miss Kinsella used Mr 2 s login details to approve her bank shift in his absence. Ref Date of shift Date assigned and/or authorised 50 28 April 2013 29 April 2013 The panel noted that Miss Kinsella has no swipe card records for this date. The panel also noted that Mr 2 stated in oral evidence that he was not working as he would have been on his Mentorship in Practice Course, although he could not pinpoint the exact date, but accepted that if the rota indicated he was on his Mentorship in Practice Course then could not have authorised this shift on this date. The panel also considered the off duty rota which indicated Mr 2 had his Mentorship in Practice Course on that date. The panel accepted that Mr 2 was not present at the ward that day. The panel found that although Miss Kinsella had no swipe card records, she was present on the ward because she made a retrospective entry on that date at 10:56, and Page 28 of 41
the shift was authorised by Mr 2 s account at 12:04. The panel concluded that it was more likely than not, on the balance of probabilities, that Miss Kinsella used Mr 2 s login details to approve her bank shift in his absence. Ref Date of shift Date assigned and/or authorised 51 9 June 2013 10 June 2013 The panel noted that Miss Kinsella has no swipe card records for this date. The panel also noted that Mr 2 stated in oral evidence that he was at a Mentorship in Practice Course, and although on the rota it indicates he was working, this is for administrative purposes and that he could not have authorised this shift on this date as he was not on the ward. The panel accepted that Mr 2 was not present at the ward that day. The panel found that although Miss Kinsella had no swipe card records, she was present on the ward because she had made a retrospective entry on that date at 10:42, and the shift was authorised by Mr 2 s account at 13:55. The panel concluded that it was more likely than not, on the balance of probabilities, that Miss Kinsella used Mr 2 s login details to approve her bank shift in his absence. Accordingly, this charge is found PROVED. Charge 4: 4. Your actions, as set out in (3) above were dishonest, in that, you knew Colleague A had not authorised the shifts. In relation to this charge the panel took into all of the particulars found proved in Charge 3. By using Mr 2 s login details to authorise false claims, the panel considered that Miss Kinsella acted dishonestly by the standard of ordinary and honest members of the Page 29 of 41
profession, and that she would have realised that what she was doing was, by those standards, dishonest. Accordingly, this charge is found PROVED. 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 Kinsella s fitness to practise is currently impaired. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. The panel acknowledged that determinations on misconduct and impairment were matters for its own independent judgement. It bore in mind that misconduct is a word of general effect relating to actions or omissions falling short of the standards expected of a registered nurse; and that no burden of proof fell upon either party at this stage. The panel also recognised its obligation to have regard to the public interest. The public interest includes the protection of patients, the declaration and upholding of proper standards of conduct and behaviour, and the maintenance of public confidence in the profession and its regulator. In relation to misconduct, Ms Robinson invited the panel to take the view that Miss Kinsella s actions amounted to a departure from key elements of the preamble to The Code: Standards of conduct, performance and ethics for nurses and midwives 2008 ( the Code ). She also drew attention to Miss Kinsella s shortcomings in relation to paragraph 61. She submitted that Miss Kinsella s actions were serious, and fell significantly short of what is expected of a nurse. She submitted that Miss Kinsella s behaviour had amounted to misconduct. As to impairment, Ms Robinson submitted that charges found proved were serious and occurred over a significant period of time, namely April 2012- June 2013. The actions were repeated. She submitted that that the risk of repetition of Miss Kinsella s behaviour is therefore high. She submitted that the charges centre around dishonesty by claiming Page 30 of 41
for bank shifts for which she did not work, which is by its nature difficult to remedy. Ms Robinson reminded the panel to look at Miss Kinsella s current impairment. She submitted that there was no evidence of insight or remediation, and that Miss Kinsella appears not to have engaged with her regulator in any way. Ms Robinson invited the panel to conclude that Miss Kinsella s fitness to practise is currently impaired. The panel has accepted the advice of the legal assessor, who reminded the panel (amongst other things) that it must consider current impairment and could consider whether fellow practitioners would view Miss Kinsella s actions as deplorable. The panel adopted a two-stage process in its consideration, as advised. First, the panel must determine whether the facts found proved amount to misconduct. Secondly, only if the facts found proved amount to misconduct, the panel must decide whether, in all the circumstances, Miss Kinsella s fitness to practise is currently impaired as a result of that misconduct. Panel s decision on misconduct: When determining whether the facts found proved amount to misconduct the panel had regard to the terms of The code: Standards of conduct, performance and ethics for nurses and midwives 2008, which was in effect at the time of Miss Kinsella s actions. The Code contains the underlying principles that guide the nursing profession and is in place to protect the public and to ensure that proper standards of the profession are upheld. The panel has reminded itself that registrants are personally accountable, under the code, for acts and omissions in their practice. The panel, in reaching its decision, had regard to the public interest and accepted that there was no burden or standard of proof at this stage and exercised its own professional judgement. Page 31 of 41