Present and represented by Christopher Geering, Counsel, instructed by Royal College of Nursing

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1 Conduct and Competence Committee Hearing 5-6 January 2017 NMC, 61 Aldwych, London WC2B 4AE Name of Registrant Nurse: Nasim Shazia Masih NMC PIN: 02C1982O Part(s) of the register: Registered Adult Nurse Sub Part 1 April 2002 Area of Registered Address: Avon Type of Case: Misconduct Panel Members: Alison Stone (Chair Lay member) Jennifer Anne Frost (Registrant member) Dr Maxine Offredy (Lay member) Legal Assessor: William Hoskins Panel Secretary: Anita Abell Ms Masih: Present and represented by Christopher Geering, Counsel, instructed by Royal College of Nursing Nursing and Midwifery Council: Represented by Henry Vallance, Case Presenter, instructed by NMC Regulatory Legal Team 1

2 Facts proved: Charges 1.1, 1.2 in relation to Colleague B s completed test sheet, 2, and 3 in relation to the completed test sheet Facts not proved: Charge 1.2 in relation to the drug calculation test, 3 in relation to the drug calculation test Fitness to practise: Impaired Sanction: Caution order for 3 years The charges: That you, a registered nurse, whilst employed by North Bristol NHS Foundation Trust: 1. On 27 November 2015: 1.1 took a completed drug calculation test sheet belonging to Colleague B from Colleague A s bag without permission; 1.2 asked Colleague A not to tell anyone that you had failed the drug calculation test and/or that you had taken Colleague B s completed test sheet without permission. 2. Your conduct at charge 1.1 was dishonest in that you knew you were not permitted to see Colleague B s answers and/or remove Colleague B s test sheet without permission. 2

3 3. Your conduct at charge 1.2 was dishonest, in that you were asking Colleague A to lie on your behalf in order to conceal your failure of the drug calculation test and/or your subsequent attempt to take Colleague B s completed test sheet. AND, in light of the above, your fitness to practise is impaired by reason of your misconduct. Background You have been employed as a registered nurse by the North Bristol NHS Foundation Trust (the Trust) since The Trust required all nurses to complete an intravenous (IV) therapy generic adult and community drugs calculation test (the test). There was no record of your having taken such a test on your Trust personal training record. Your manager, Colleague D, arranged for you to take a test. On 27 November 2015 you attended a two hour master class, taught by Colleague A, with about ten other colleagues, to prepare for the test. After the master class concluded there was a ten minute break prior to the test commencing. During the break Colleague A advised you that you were not ready to take the test and needed more preparation. However, you decided that you would take the test. The test was for a maximum of one hour. The custom and practice was that as each candidate finished the test, the paper was marked immediately and the candidate informed of the result. At the end of your test Colleague A advised you that you had failed the test. At this time there was only yourself and Colleague A in the examination room, all other students having completed the test and left. 3

4 Colleague A offered to give you some extra assistance and study materials from her office. She put the examination test sheets in her personal bag which she placed on a trolley. Colleague A and you left the room. On the way to her office, Colleague A left the trolley in the corridor whilst she photocopied the attendance sheet for the test. You were waiting for her in the corridor. It is alleged that that you removed a drug calculation test sheet completed by Colleague B from Colleague A s bag without her permission. Colleague A saw you take the paper and conceal it under your coat. Colleague A asked you to return the paper which you did. It is alleged that you asked Colleague A not to inform anyone that you had failed the test and not to inform anyone that you had taken Colleague B s test paper from her bag. Colleague A informed you that she would need to inform your ward manager that you failed the test, and that you had taken Colleague B s paper from her bag. Part of this discussion was witnessed by a cleaner, Colleague C. Colleague A ed your ward manager, Colleague D, on 30 November Colleague D passed the on to Colleague E, the Head of Nursing, Musculoskeletal Directorate. After consulting human resources, Colleague E met with you and Colleague D on 2 December 2015, and Colleague E suspended you. You were interviewed on 16 February 2016 by Colleague F, clinical matron for practice development, as part of the investigation process. Colleague F also interviewed Colleague A, Colleague C, and Colleague D. Colleague F produced the management statement of case dated 6 May 2016 for the disciplinary hearing which was heard on 6 June

5 Determination on facts The panel heard evidence from, and read the exhibits of the following witness: Colleague A, practice development trainer. The panel read a witness statement and the exhibits from Colleague E. The panel also read the NMC bundle which contained your test paper, Colleague B s test paper, an from Colleague A to Colleague D about the incidents in question, the management statement of case, notes of an interview with you on 16 February 2016, and notes of an interview with Colleague A on 8 January The panel also read a document submitted on your behalf which is the notes of an interview with Colleague C on 8 January You submitted a number of testimonials, attesting to your honesty. The panel accepted that you are a person of good character and took that into account when considering the evidence. The panel considered the credibility of Colleague A s evidence. The panel found her to be a reliable witness, prepared to admit when she could not remember details and she was fair to you in that she acknowledged that you and she might interpret things differently. The panel had the impression that she was a conscientious trainer with an understanding of issues that would concern her trainees, such as a fear of mathematics. You produced a document entitled Reflective statement in respect of the NMC charges which was in reality a witness statement. You also gave oral evidence to the panel. You told the panel that you did not ask Colleague A to conceal your failure to pass the test. You admitted taking Colleague B s test paper and said that this was a mistake, but informed the panel that you were trying to obtain your test 5

6 paper as you stated that you wanted to see what questions you had answered wrongly. The panel concluded that your evidence today was inconsistent in many respects with the information contained in the notes of your disciplinary interview. For example, you were adamant in your evidence today that you were not wearing a coat but in your disciplinary interview you stated that it was raining and you may have had a coat. There were similar discrepancies relating to whether the test papers were in a bag, trolley or on a chair at the time it was alleged you took Colleague B s paper, and whether you discussed your results with Colleague A after the test, before leaving the exam room. The panel noted that you described taking the test paper as a misunderstanding in your written statement and a mistake in your evidence. The panel concluded that you were reluctant to acknowledge the seriousness of the charges, their consequences and implications. When considering the charges, the panel took into account the submissions of Mr Vallance, and of Mr Gearing, all of the evidence before it, both documentary and oral. The panel heard and accepted the advice of the legal assessor. He reminded the panel that in relation to the charges of dishonesty the test to be used is that set out in R v Ghosh 75 Cr App R 154 and Twinsectra v Yardley [2002] UKHL 12. He referred the panel to short passages from the cases of In re H [1996] AC 563, In re D [2008] 1WLR 1499 and R (Independent Police complaints Commission )v Assistant Commissioner Hayman[2008]EWHC 2191 (Admin). The burden of proof rests upon the NMC and you do not have to prove or disprove anything. The standard of proof is the civil standard, namely the balance of probabilities. This means that, for a fact to be found proved, the NMC must satisfy 6

7 the panel that what is alleged to have happened is more likely than not to have occurred. In determining the facts, the panel is entitled to draw common-sense inferences but not to speculate. The panel then considered the charges against you which were: 1. On 27 November 2015: 1.1 took a completed drug calculation test sheet belonging to Colleague B from Colleague A s bag without permission; The evidence of Colleague A was quite clear on this point. The panel was satisfied that she had an established procedure for dealing with her paperwork after completion of the master class and test. She described putting the confidential test question papers in a box which would be locked away in her office. She explained to the panel that she put all the successful trainees papers in a large personal bag unfolded and upright as she would later need to input information from them onto a database. She also described placing your paper elsewhere on the trolley as you were the only candidate that failed the test that day. She had a clear view of you and the trolley through glass panels in the photocopying room when she saw you take a paper out of her bag. She also explained how she was annoyed that you had gone into her personal bag. Your evidence was that you took a folded paper from either the trolley or a chair and that you were attempting to obtain your test paper to see which questions you answered incorrectly. The panel considered that Colleague A gave a convincing account of events and that you did take Colleague B s test sheet from Colleague A s bag without permission. 7

8 The panel therefore find this charge proved. 1.2 asked Colleague A not to tell anyone that you had failed the drug calculation test and/or that you had taken Colleague B s completed test sheet without permission. The panel considered the first limb of this charge which was that you asked Colleague A not to tell anyone that you had failed the drug calculation test. The panel has heard no evidence that these words were used in relation to the test. Colleague A stated that she originally told all candidates that she would not inform their managers if they failed. She later changed her mind about this in relation to your test because she was concerned about patient safety, but she could not say with certainty when she told you this. Mr Vallance asked the panel to accept that when you asked Colleague A to pass you on the test it amounted to the same thing as asking her not to tell anyone that you had failed the drug calculation test. The panel concluded that asking someone not to tell a manager that they had failed a test is not the same as asking for someone to pass you on a test that you failed. The panel concluded there was no evidence to support this limb of the charge. The panel therefore find this charge not proved in relation to you asking Colleague A not to tell anyone that you had failed the drug calculation test. The panel considered the second limb of this charge which was that you asked Colleague A not to tell anyone that you had taken Colleague B s completed test sheet without permission. Again the evidence of Colleague A was clear and consistent on this point. In her witness statement at paragraph 15, Colleague A wrote I said give me the paper back. I told I had seen her. She gave it back. She started saying I m sorry and she begged me not to tell. I told her I would inform her manager. In her oral evidence she stated that you handed the paper back and 8

9 started making prayer-like gestures with your hands. She described your behaviour as bizarre. Her evidence was corroborated by the interview notes of Colleague C which describes you as making pleading hand gestures and repeatedly apologising. The panel concluded that it preferred the evidence of Colleague A, which was supported to a substantial extent by Colleague C s interview notes. The panel therefore find this charge proved in relation to you asking Colleague A not to tell anyone that you had had taken Colleague B s completed test sheet without permission. 2. Your conduct at charge 1.1 was dishonest in that you knew you were not permitted to see Colleague B s answers and/or remove Colleague B s test sheet without permission. In considering both charges of dishonesty, the panel reminded itself of the questions to be considered which are: Was what you did dishonest by the ordinary standards of reasonable and honest nurses? Did you realise that what you were doing would be regarded as dishonest by those standards? The panel noted that you took the test paper when you believed Colleague A to be distracted elsewhere. The evidence of Colleague A and Colleague C in relation to your demeanour after you had been discovered taking the test paper from Colleague A s bag was consistent. Both describe you as apologetic, acting in a pleading and respectful manner and gesturing with your hands in a prayer position. 9

10 In your written statement, although you describe the incident as a misunderstanding, you do acknowledge that you should not have behaved in the way you did. In oral evidence you acknowledged that what you did was wrong. The panel considered that reasonable and honest nurses would consider your behaviour in taking a completed test paper, even if you thought it was your own, from a colleague s bag after the papers had been gathered in and collated was dishonest. Further your demeanour when discovered was such that the panel concluded that you knew your behaviour to be dishonest. The panel therefore find this charge proved. 3. Your conduct at charge 1.2 was dishonest, in that you were asking Colleague A to lie on your behalf in order to conceal your failure of the drug calculation test and/or your subsequent attempt to take Colleague B s completed test sheet. As the first limb of charge 1.2 was found not proved the panel make the same finding in relation to the first limb of this charge, in relation to asking Colleague A to conceal your failure of the drug calculation test. When considering the second limb of this charge the panel carefully considered the wording and, in particular, whether you asked Colleague A to lie on your behalf in order to conceal your subsequent attempt to take Colleague B s completed test sheet. The panel considered that on discovering what you had done, Colleague A was undoubtedly under a professional duty to disclose your behaviour. By asking her not to tell any other colleagues you were in effect asking her to conceal information which she was under an obligation to disclose, and by implication you were asking her to behave dishonestly. 10

11 The panel concluded that reasonable and honest nurses would consider your behaviour in asking a colleague not to disclose such information was dishonest. Further, the panel concluded that you knew such a request was dishonest. The panel therefore find this charge proved in relation to asking Colleague A to lie on your behalf to conceal your attempt to take Colleague B s test sheet out of her bag. Determination on misconduct and impairment The panel went on to consider, on the basis of the facts found proved, whether your fitness to practise is impaired under the amended Rule 24 (12) of the Nursing and Midwifery Council Fitness to Practise Rules The panel has taken account of all the evidence before it, and the submissions made by Mr Vallance, and by Mr Geering. Mr Vallance submitted that your behaviour did amount to misconduct and that your fitness to practise was currently impaired on the grounds of public interest. On your behalf, Mr Geering accepted that the panel s findings amounted to misconduct and further that a finding of current impairment was required on public interest grounds. The panel has heard and accepted the advice of the legal assessor. The panel approached its deliberations as a two stage process. It considered firstly whether as a matter of judgment, there has been misconduct, and secondly, if so, 11

12 whether, in the light of all the material before it, your fitness to practise is currently impaired. Determination on misconduct The panel first considered whether the facts proved amount to misconduct. It bore in mind the case of Roylance v General Medical Council (No 2) [2000] 1 A.C. 311, where misconduct was defined by Lord Clyde as; 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. The panel considered that your behaviour, taking a test paper from another colleague s bag without permission and, when found out, asking that colleague to conceal the facts, fell well below the standards expected of a registered nurse. It showed a lack of respect for Trust procedures. The panel was particularly concerned that you attempted to persuade a colleague to act in a dishonest manner which would impact on her professional integrity and reputation. The panel also had regard to the Nursing and Midwifery Council publication The Code: Professional Standards of practice and behaviour for nurse and midwives (March 2015) (the Code). It concluded that you had breached the following provisions of the Code: 20. Uphold the reputation of your profession at all times To achieve this, you must: 20.1 Keep to and uphold the standards and values set out in the Code 12

13 20.2 Act with honesty and integrity at all times, treating people fairly and without discrimination, bullying or harassment The panel concluded that every one of the charges found proved amounted to misconduct as they all related to dishonest actions, committed by yourself in the course of professional training. On that basis, the panel concluded your actions would be considered deplorable by other members of the nursing profession and as such were sufficiently serious to amount to misconduct. Determination on impairment Having found that your behaviour amounted to misconduct, the panel went on to consider whether your fitness to practise is currently impaired by reason of that misconduct. The panel was mindful that a registrant s impairment should be judged by reference to her suitability to remain on the register without restriction. In deciding this matter the panel has exercised its independent professional judgement. The panel considered the case of CHRE v NMC and Grant [2011] EWHC 97 and took into account the guidance provided by Dame Janet Smith and approved by Cox J. When deciding whether fitness to practise is impaired, it should be aware of the need to protect the public and the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession. 13

14 The panel reminded itself of the guidance formulated by Dame Janet Smith in her Fifth Shipman Report, as cited in Grant, regarding the proper approach to be taken when considering impairment: a) Whether the registrant has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; b) Whether the registrant has in the past brought and/or is liable in the future to bring the profession into disrepute; c) Whether the registrant has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession. d) Whether the registrant has in the past acted dishonestly and/or is liable to act dishonestly in the future The panel concluded that in the past your behaviour had engaged all the limbs specified in (b) to (d) above. The panel concluded that there was no evidence that you had, in the past, put your patients at unwarranted risk of harm, (a) above. The panel concluded that your behaviour had, in the past, brought the profession into disrepute in that in that you behaved dishonestly and tried to compromise the integrity of a colleague and a test procedure. Further, you had, in the past, breached a fundamental tenet in that you did not act with integrity and you were not open and honest. The NMC considers honesty and integrity to be a bedrock of the nursing profession. The panel next considered your future behaviour. In doing so, it took into account the guidance in the case of Cohen v General Medical Council [2008] EWHC 581 (Admin), quoted at paragraph 70 of Grant: 14

15 It must be highly relevant in determining if a doctor's fitness to practise is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated. The panel considered the extent to which your misconduct was remediable, whether it has been remedied and whether it is likely to be repeated and whether there was evidence of any insight shown by you. The panel concluded that it is particularly difficult to demonstrate remediation of dishonesty. The panel considered that both reflective pieces provided by you demonstrated little appreciation of the impact your behaviour would have on your colleagues, your patients, the NMC or the public perception of the profession. Although you have expressed remorse, the panel considered that the remorse is self-centred. The panel concluded that your insight is limited. The panel next considered whether there was a risk of repetition. It concluded that your dishonesty was in the nature of a one-off impulsive incident in a long nursing career. Further the Trust s disciplinary action and the NMC s procedures have had a salutary effect on you. The panel concluded the risk of repetition is low. The panel did not consider that issues of public protection were engaged in this case. The panel next considered the public interest in upholding standards in the profession and in maintaining confidence in the NMC as regulator. The panel concluded that members of the public would expect nurses to be honest and act with integrity, and not compromise other colleagues. Further, the public would expect nurses to respect and cooperate with any training or examination procedures required by their employer. As such, the panel has concluded that your fitness to practise is currently impaired on public interest grounds. This is to ensure that proper standards of conduct and behaviour are maintained and to preserve public confidence in the nursing profession. 15

16 Determination on Sanction Having determined that your fitness to practise is impaired, the panel has now considered what sanction, if any, it should impose on your registration. In reaching its decision on sanction, the panel has considered all the evidence that has been placed before it. The panel took into account the submissions from Mr Vallance and Mr Geering. The panel has heard and accepted the advice of the legal assessor. Under Article 29 of the Nursing and Midwifery Council Order 2001, the panel can take the following actions in ascending order: no further action; make a caution order for one to five years; make a conditions of practice order for no more than three years; make a suspension order for a maximum of one year; or make a striking off order. The panel has borne in mind that the purpose of a sanction is not to be punitive, though it may have a punitive effect. The panel also noted that it should first consider the least restrictive sanction. If it considers that that sanction is not appropriate then it should approach the issue of sanction in ascending order of seriousness. The panel has applied the principles of fairness, reasonableness and proportionality, balancing the interests of patients and the public with your own interests and taking into account any mitigating and aggravating factors in the case. The public interest includes the protection of patients, the maintenance of public confidence in the profession and declaring and upholding proper standards of conduct and behaviour. The panel has also taken account of the current Indicative Sanctions Guidance, particularly paragraphs which apply specifically to cases of dishonesty. 16

17 The panel concluded that the aggravating features in this case include the following: you tried to involve your colleague in your dishonesty you deliberately took a confidential document from a colleague s personal bag. The panel concluded that the mitigating features in this case include the following: this was an isolated one-off incident, without any premeditation or planning there was no patient harm you cooperated with the Trust and the NMC investigations you are of good character. The panel first considered taking no further action and decided that this would be inappropriate. It bore in mind that dishonesty is always a serious matter and in those circumstances it would not be in the public interest to take no further action. To do so would not maintain the standards of, or confidence in, the profession or the regulator. The panel then went on to consider whether a caution order would be appropriate. The panel notes that the ISG states at paragraph 61 that a caution may be appropriate where the case is at the lower end of the spectrum of impaired fitness to practise and the panel wishes to mark that the behaviour was unacceptable and must not happen again. The panel considered that, whilst dishonesty is always serious, this case could be described as being at the lower end of the spectrum of impairment given the 17

18 mitigating factors, and, importantly, that the panel has concluded that the risk of repetition is low. The panel bore in mind that this case involves no risk of patient harm and that your clinical practice has always been, and remains, good. You have shown remorse, albeit focused on yourself, and you have accepted that you acted dishonestly. The issue in this case relates solely to the public interest in declaring standards and maintaining public confidence in the profession. At paragraph 62 the ISG states in relation to a caution order that It might be appropriate where the nurse s history is such that the panel is confident that there is no risk to the public or to patients which requires the nurse or midwife s practice rights to be restricted. The panel considers that this is such a case. The panel considered that a reasonable, well-informed member of the public in full possession of all the facts would consider that a caution order ensures that proper standards are upheld within the profession. The effect of such an order is that, although your practice is not restricted, the caution is recorded against your registration and recorded on the NMC s website. It forms an alert about your past conduct, visible and disclosable to anyone enquiring about you or your fitness to practise history. It has to be declared to anyone considering employing you as a nurse. It may have a detrimental effect if you were to be seeking new employment. It is therefore a significant sanction and a mark of the panel s disapproval of your dishonesty. The panel concluded that other members of the profession and the public would see it as affirming that dishonesty is unacceptable within the profession and will always be viewed as a serious matter with significant consequences. 18

19 The panel did not consider that conditions of practice would be appropriate in this case, given that there is no risk to patients and no concerns about your clinical practice. The panel considered that a suspension order would be disproportionate. It would be punitive, and is not necessary for the protection of the public. The panel concluded that a suspension order would not be in the public interest as there would be no benefit to the public in the removal from the register of a competent nurse. The panel considered that the circumstances of this case, although serious, do not require temporary removal from the register, as a caution order is sufficient to protect the public interest. The panel also bore in mind that a suspension order would have a detrimental financial impact on you and your family. On its own this would not be a sufficient factor to outweigh the public interest, but it is a relevant factor when taken into account with other factors. Balancing all these factors the panel decided that a caution order was the appropriate and proportionate sanction, and would serve to declare and uphold standards and to maintain public confidence in the profession, and in the NMC as regulator. The panel has decided that the order should be imposed for three years. It considered that this was a sufficient period to mark the severity of these matters and send a message to the profession, and to the public, that dishonesty is unacceptable and must not happen. However, it is not so long a period as to be unduly punitive in the light of the mitigation in this case. This decision will be confirmed to you in writing. That concludes this determination. 19

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