Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 25 28 June 2018 Nursing and Midwifery Council, sitting at St James' Buildings, Oxford Street, Manchester, M1 6FQ Name of registrant: NMC PIN: Miss Emma Wilkinson 10G1182E Part(s) of the register: Registered Nurse Sub Part 1 Adult Nursing September 2010 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Nursing and Midwifery Council: England Misconduct/Conviction Anne Asher (Chair, Registrant member) David Evans (Lay member) Alexander Coleman (Lay member) John Bromley-Davenport Calvin Ngwenya Represented by Siobhan Caslin, of Case Presenter Registrant: Present and represented by Heather McMahon, Counsel, instructed by the Royal College of Nursing (RCN) Facts proved by admission: 2, 3 and 4 No case to answer: 1.1, 1.2 and 1.3 Fitness to practise: Impaired Sanction: Striking Off Order Interim Order: No order imposed 1
Details of charge: That you, a registered nurse: 1. While employed as a Band 5 Community Nurse by Central Manchester University Hospital NHS Foundation Trust: 1.1 On 2 May 2014 stole an unknown quantity of Oxycontin from the home of Patient A; 1.2 On 6 August 2014 stole 13 tablets of Diazepam from the home of Patient B; 1.3 On 10 July 2015 stole approximately 30 sachets each containing 20mg Morphine Sulphate from the home of Patient C. 2. On 29 April 2016, failed to disclose in an employment application form to Harbour Healthcare Ltd that you had been dismissed from your former employment with the Central Manchester University Hospital NHS Foundation Trust. 3. Your conduct in charge 2 was dishonest in that you sought to conceal the fact of your dismissal. AND in light of the above your fitness to practise is impaired by reason of your misconduct. 2
Admissions: Following the reading of the charges, Ms McMahon on your behalf indicated that you admitted facts alleged in charges 2 and 3. However, she submitted that all of the matters alleged in charge 1 are disputed. In the light of the above, the panel found charges 2 and 3 proved by way of your admissions. Decision and Reasons on application pursuant to Rule 31: Ms Caslin on behalf of the NMC made an application under Rule 31 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the Rules ). The application was to adduce documentary evidence other than that of live witness testimony in support of charges 1.1 and 1.3. Ms Caslin informed the panel that the patients involved in these charges, namely, Patient A and Patient C, are now deceased as they were at the time of the allegations receiving end of life care. Consequently, the NMC was not able obtain witness statements from the patients. In respect of charge 1.1, Ms Caslin informed the panel that it was Patient A s sister who reported the alleged theft of medication from Patient A s home to a McMillan nurse. However, despite its efforts to locate and obtain a statement from Patient A s sister, the NMC has been unable to do so. In this regard Ms Caslin asked the panel to consider the principles in the case of PSA v NMC and X [2018] EWHC 70 (Admin). She invited the panel to accept documentary evidence of the McMillan nurse s account which was obtained as part of the local investigation, in relation to what Patient A s sister told her about the events in question. She submitted that this evidence is clearly relevant, and in circumstances where it was not possible for the primary witness to give evidence, it would be fair to adduce the accounts of the McMillan nurse and Patient A s sister into evidence. She also reminded the panel of its duty of enquiry and of fairly admitting any evidence that would assist it in determining a serious allegation. 3
With regard to charge 1.3, Ms Caslin submitted that although Patient C was now deceased and no longer able to give live evidence, he had provided a signed witness statement to the police prior to his death. Ms Caslin informed the panel that Patient C, who was a direct witness to the allegation in charge 1.3, had signed the declaration of truth in his statement to the police and indicated that he was willing to attend court and give live evidence. Ms Caslin submitted that Patient C s evidence was clearly relevant. She submitted that although this was the sole and decisive evidence in respect of charge 1.3, there were statements from two other colleagues in relation to this allegation within the evidence bundle, as well as your own account of what happened. Ms Caslin submitted that it would be fair to adduce Patient C s statement given the cogent reason for his non-attendance. She referred the panel to the case of R (Bonhoeffer) v GMC [2011] EWHC 1585 and further submitted there was a public interest in these matters being fully explored. Therefore, the balance falls in favour of adducing Patient C s statement into evidence as it is relevant and fair to do so. Ms McMahon on your behalf provided the panel with a written skeleton submission and legal authorities in respect of the application. She referred the panel to the provisions of Rule 31(1) and the cases of Ogbonna v NMC [2010] EWCA Civ 1216; Thorneycroft v NMC [2014] EWHC 1565 (Admin) and Bonhoeffer, in relation to the factors it should take into account when determining the question of fairness in admitting hearsay evidence. Ms McMahon opposed the application on the basis that it would be profoundly unfair to you to admit the hearsay evidence. In respect of charge 1.1, she submitted that the NMC seeks to adduce two hearsay accounts to show that there was a loss of medication and that you were responsible. However, neither document was signed or contained a statement of truth verifying their contents. She noted that the alleged incidents which occurred in 2014, were referred to the NMC in 2016, but it is not clear why efforts to contact the patient s sister, who has not responded to the NMC, were not made until late 2017. Nor was it clear why other nurses who gave statements to the 4
local investigation were not called to give evidence. Ms McMahon submitted the evidence which the NMC sought to adduce was the sole and decisive evidence in respect of charge 1.1 and there was no other corroborative evidence to support it. Ms McMahon further submitted that if medication was indeed stolen, you deny being responsible. Therefore, if the hearsay evidence was adduced, you would not have the opportunity to cross examine the witnesses in relation to the disputed issues. She submitted that this was a serious allegation, which if found proved, could have grave consequences for your career. With regard to the application in respect of charge 1.3, Ms McMahon submitted that the hearsay evidence of Patient C s account was the sole and decisive evidence in support of the charge. She submitted that if Patient C s account was to be adduced into evidence, you would not be able to test it through cross examination. The panel had to be satisfied that it is demonstrably reliable. However, there was no other documentary evidence to show that the medication was missing or that you were responsible. Ms McMahon submitted that the case against you was wholly circumstantial and it was clear that you were not the only person who had unsupervised access to the area where the medication was stored. In those circumstances, Ms McMahon invited the panel to exclude the hearsay account of Patient C from evidence. Ms Caslin and Ms McMahon addressed the panel on the preliminary issue of whether the panel should have sight of the hearsay evidence which was subject of the application before making a determination on its admissibility. Ms Caslin on behalf of the NMC made submissions in favour of the panel having sight of the hearsay evidence on the basis that it would assist the panel in determining whether such evidence was admissible. Ms McMahon on your behalf, opposed the NMC s approach on the basis that it would be unfair, notwithstanding their relevance, for the panel to consider the contents of the statements prior to making its decision. She noted that the panel is already aware of the nature of the evidence and to which charges it related. Therefore, it was not necessary or desirable for the panel to have 5
sight of them when the issue it had determine was that of fairness in adducing the evidence. The panel heard and accepted the advice of the legal assessor. The panel considered that it already had a reasonable understanding of the nature of the hearsay evidence and which allegations it related to as outlined in the submissions of Ms Caslin, Ms McMahon and in the course of the legal assessor s advice. In balancing the benefits of having sight of the statements against fairness to you, the panel determined not to read the hearsay evidence prior to making its decision on admissibility. The panel then heard and accepted the legal assessor s advice on the issues it should take into consideration in respect of the application under Rule 31 (1). Rule 31(1) states: Upon receiving the advice of the legal assessor, and subject only to the requirements of relevance and fairness, a Practice Committee considering an allegation may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil proceedings (in the appropriate Court in that part of the United Kingdom in which the hearing takes place). The panel first considered the question of relevance. The panel noted there was no dispute between the parties in respect of relevance of the hearsay evidence. The panel considered whether you would be disadvantaged by the NMC s position of moving from reliance upon the live testimony of witnesses to that of documentary hearsay statements. The panel first considered fairness in relation to the application to adduce hearsay evidence in support of charge 1.1. The panel noted that the hearsay evidence of the 6
McMillan nurse consisted of an account given over the telephone by Patient A s sister, who allegedly stated that she believed the medication went missing. The panel considered that given the seriousness of the allegation, there was a need for cogent evidence. However, in the panel s view the hearsay evidence of the McMillan nurse was vague and essentially double hearsay, as she was not herself a witness to the allegation. The panel determined that the hearsay evidence in respect of charge 1.1 was not supported by other evidence and it would not be fair to admit it without the opportunity to test it, notwithstanding its relevance. The panel therefore rejected the application. The panel then considered fairness in relation to the application to adduce hearsay evidence in support of charge 1.3. Although the hearsay evidence of Patient C was the sole and decisive evidence in support of the allegation, the panel took into account that Patient C was now deceased and no longer able to give live evidence. Therefore there was a compelling reason for his non-attendance. The panel considered it significant that Patient C could have given direct evidence but had provided a signed statement with a declaration of truth to the police prior to his death. In that statement Patient C expressed a willingness to attend court to give evidence if required. The panel noted that you would not be in a position to test the hearsay evidence through cross examination. However, the panel considered that there was no absolute right to cross examine witnesses. The panel determined that it was in the public interest in the issues being explored fully and properly which supported the admission of Patient C s account into evidence, to assist the panel in undertaking its role appropriately. In consequence, it was fair in these circumstances to admit the statement. Furthermore, as an experienced panel, it would attach the appropriate weight to that hearsay evidence once it had heard and evaluated all the evidence before it. In these circumstances, the panel came to the view that it would be fair and relevant to admit into evidence Patient C s statement. 7
Background: You were referred to the NMC by the Central Manchester University Hospital Foundation Trust (the Trust), where you were employed as a Band 5 Community nurse from September 2010 to March 2016. The referral was in relation to three separate allegations that you stole medication from the homes of patients. It is alleged that on 2 May 2014, you stole an unknown quantity of Oxycontin tablets from the home of patient, Patient A. Patient A had reported the missing medication to a McMillan nurse following your visit to his property. On 6 August 2014, there was a further allegation that you stole 13 tablets of Diazepam from the home of another patient, Patient B. On this occasion you had attended Patient B s home with another nurse, Ms 1 (District Nursing Sister at the Trust) during a routine district nursing visit. You had accompanied Ms 1, who was checking your community nursing competencies following your recent arrival on her team. It is alleged that whilst Ms 1 was assessing Patient B s wound, you did not stay by her side and you had been alone for approximately 10 minutes in the area where Patient B s medication was stored. Later that day, Ms 1 received a call from Patient B s sister who allegedly stated that medication belonging to Patient B was missing. On 10 July 2015, there was another allegation that you stole approximately 30 sachets each containing 20mg Morphine Sulphate from the home of a patient, Patient C. Patient C gave a statement to the police in relation to the alleged theft and the matter was investigated by the Trust. The Trust investigated the three allegations and you were subsequently dismissed from your employment as a result. 8
You then applied for a role of Clinical Lead/staff Nurse with Harbour Healthcare Limited (Harbour Healthcare) within one of their nursing homes. You interviewed successfully and you were subsequently offered the position. However, you failed to disclose in an employment application form and at interview that you had been dismissed from your former employment with the Trust. As a result, you were dismissed from your employment with Harbour Healthcare for breach of trust. The panel also heard oral evidence from Ms 1 at the fact stage. The panel found Ms 1 to be a credible witness who did her best to assist in these proceedings. When she was uncertain about aspects of her recollection, she said so. Decision and Reasons on Application of no case to answer: The panel considered an application by Ms McMahon on your behalf that there is no case to answer in respect charges 1.1, 1.2 and 1.3. Ms McMahon made the application under Rule 24 (7) of the Rules. This rule states: 24 (7) Except where all the facts have been admitted and found proved under paragraph (5), at the close of the Council s case, and (i) either upon the application of the registrant the Committee may hear submissions from the parties as to whether sufficient evidence has been presented to find the facts proved and shall make a determination as to whether the registrant has a case to answer. In relation to this application Ms McMahon referred the panel to the principles set out in the case of R v Galbraith [1981] 1 WLR 103. Ms McMahon invited the panel to consider each charge individually. Ms McMahon took the panel through each individual charge and outlined how the evidence presented by the NMC was either insufficient, tenuous, inconsistent with other evidence or contradictory. Ms McMahon submitted that taking 9
the NMC s evidence at its highest in relation to all of these charges, a panel properly directed, could not find the charges proved. In respect of charge 1.1 she submitted that there is no evidence whatsoever in support of that charge. Therefore the first limb of the case of Galbraith applies. In respect of charge 1.2, Ms McMahon submitted that the evidence that medication was stolen came from Ms 1. However, Ms 1 accepted in her oral evidence that there was no evidence that the medication was missing and that she could not remember the use of the word stolen when the matter was raised. Ms McMahon submitted that Ms 1 could not say how much medication there was in the first place or how much had gone missing. Furthermore, there was no other documentary evidence to support the assertion that the medication was missing or that it consisted of 13 tablets of Diazepam. She submitted that if medication was indeed stolen, there is no evidence that you were responsible. The evidence in support of the charge, merely showed that you would have, as did two other people, access to the medication at the time. Ms McMahon therefore submitted that the weight which the panel can attach to that evidence was vanishingly slight. She submitted that this evidence falls on the first limb of Galbraith and invited the panel to find that this there is no case to answer. With regard to charge 1.3, Ms McMahon accepted that there was some evidence in support of the charge but she noted that it was of a tenuous character. She submitted that the evidence was weak and vague, noting the inconsistencies in the accounts given. Furthermore, the evidence could not be tested by cross examination, as such, no weight could reliably be placed on it. Ms McMahon submitted that there was no evidence that you were seen taking the medication and there was evidence showing that other individuals had unsupervised access to the medication on the day in question. She submitted that this evidence only demonstrated that you had had the opportunity to access the medication, together with two other individuals. Ms McMahon submitted that taken at its highest there is no other evidence on which a panel, properly directed, could find charge 1.3 proved. 10
Ms Caslin, on behalf of the NMC, opposed the application on the grounds that the panel has been presented with sufficient evidence on which it could potentially find the charges proved. However, she invited the panel to consider whether there was any evidence in support of charge 1.1, in the light of the its earlier decision in respect of the application to adduce hearsay evidence in support of that charge. She agreed with the application of the principles set out in the case of Galbraith. With regards to charge 1.2, Ms Caslin submitted that the panel has been presented with evidence on which a panel properly directed, could find the charge proved. She accepted that the evidence was circumstantial in nature but that did not mean it was insufficient to support a case to answer. She reminded the panel of the different standards of proof in criminal and civil proceedings, which she said were relevant in the panel s determination in respect of this application. Ms Caslin outlined the evidence that has been presented in support of charge 1.2 and submitted that there were minimal inconsistencies in the evidence. She referred the panel to the oral evidence of Ms 1 and the contemporaneous statement she made in relation to this allegation, noting that she was a clear, honest, truthful and credible witness, who bore no animosity towards you and had no knowledge of previous allegations made against you. Ms Caslin submitted in these circumstances there was sufficient evidence on which the panel could find charge 1.2 proved on the balance of probabilities. With regard to charge 1.3, Ms Caslin submitted that there is some evidence in support of the charge and referred the panel to the account given by Patient C. She submitted that Patient C s witness statement to the police, which has a signed declaration of truth, and which was written shortly after the incident, confirmed that you had unsupervised access to the kitchen area where the medication was stored. Ms Caslin accepted that there were some minor inconsistencies in Patient C s account, however, they were not so great as to render the evidence incapable of supporting a case to answer. She therefore invited the panel to find that sufficient evidence has been presented at this stage, to find the facts proved on the balance of probabilities. 11
The panel heard and accepted the advice of the legal assessor who referred it to the provisions of Rule 24(7) and the principles contained in the case of Galbraith. In reaching its decision, the panel took account of the submissions of Ms McMahon, on your behalf and the submissions of Ms Caslin, on behalf of the NMC. The panel has made an initial assessment of all the evidence that had been presented to it at this stage. The panel was solely considering whether sufficient evidence had been presented at this stage, such that, a properly directed panel might find the facts of the charges against you proved and whether you had a case to answer. The panel was not determining whether the facts had been found proved. The panel addressed each of the charges separately and considered the evidence that has been presented in support of each of them. The panel first considered charges 1.1. The panel determined that there was no evidence before it in support of the charge 1.1. Accordingly, the panel acceded to the application and determined that there was no case to answer in respect of charge 1.1. The panel next considered charge 1.2. The panel noted that it had not been presented with any direct evidence supporting the allegation that you stole 13 tablets of Diazepam from the home of Patient B. In the panel s view the evidence was circumstantial and only showed that you did have an opportunity to steal the medication as you had unsupervised access to the area where it was stored. The panel also considered the evidence that you were not the only person who had unsupervised access to the area where the medication was stored and Ms 1 could not confirm in her oral evidence what, or if any medication was missing, when it was last checked or restocked. The only evidence in support of the charge was the hearsay evidence of Patient B s sister. However, in the panel s judgement, the evidence was weak and tenuous and could not be tested in these proceedings through cross examination or panel questions. The 12
panel was therefore of the view that, taking account of all the evidence before it, there was no prospect that a properly directed panel could find the facts of charge 1.2 proved. The evidence was tenuous and incomplete. It therefore found that you have no case to answer in respect of charge 1.2. The panel next considered charge 1.3. The panel considered that there was some evidence from Patient C that medication was stolen or went missing. However, it determined it had not been presented with sufficient evidence that you were responsible for the theft. In reaching that conclusion the panel noted that there were at least three other individuals, including Patient C s grandson in law, a family friend and one other nurse, who would have had unsupervised access to the area where the medication was stored. In these circumstances and taking account of all the evidence before it, the panel concluded that there was no prospect that a properly directed panel could find the facts of charge 1.3 proved. The evidence was tenuous and incomplete. It therefore found that you have no case to answer in respect of charge 1.3. Conviction Allegation: Having considered all the factual matters relating to the misconduct allegations, Ms Caslin informed the panel that there was one additional charge in relation to a conviction against you and it was now appropriate to disclose it under Rule 29 (2) of the Rules. Ms Caslin provided the panel with a copy of a memorandum of conviction and gave a summary of the circumstances leading to your conviction. A theft of drugs from Bowerfield Court Care Home (Bowerfield) was reported to the police by the deputy manager of the home. The drugs were stolen from the treatment rooms at the premises where residents prescribed medication was stored. The treatment rooms remained locked at all times and the keys to the treatment rooms were held by the registered nurse on duty at all times. A house search of your residence was subsequently conducted by the police as part of their investigation and 12 blister packs of 13
Clindamycin were found during the search. The batch number on the blister packs seized at your home matched those of Clindamycin prescribed to a recently deceased resident at Bowerfield. A check on your medical records revealed that you were not prescribed Clindamycin at the time. You gave a no comment interview when you were interviewed by the police under caution. On 22 May 2017, you pleaded guilty at Stockport Magistrates Court where you were convicted of one count of Theft of 12 blister packets of Clindamycin tablets, contrary to S.1 Theft Act 1968. Details of conviction charge: That you, a registered nurse: 4. On 22 May 2017 were convicted at the Stockport Magistrates Court of one count of Theft of 12 blister packets of Clindamycin tablets, contrary to s.1 Theft Act 1968. And in light of the above, your fitness to practise is impaired by reason of your conviction. Following the reading of the charge, Ms McMahon on your behalf informed the panel that the charge is admitted. She further submitted that impairment is also admitted. In light of the above, panel found charge 4 proved by way of your admission. Decision on Rule 19 Application: Ms McMahon, on your behalf made an application for parts of the hearing to be held in private pursuant to Rule 19 of the Rules. She submitted that this was on the basis that in the course of your evidence to the panel references would be made to matters pertaining to your health. 14
Ms Caslin did not oppose the application. The panel accepted the advice of the legal assessor. The panel was mindful of the provisions of Rule 19(1) and that hearings should usually be conducted in public. However, it determined that it would hold those parts of the hearing relating to your health in private. The panel was satisfied that the interests in maintaining the privacy of matters relating to your health outweighed the public interest in holding the entire hearing in public. 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 your 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 would also have to consider separately whether your conviction impairs your fitness to practise. The panel considered all the documentary evidence adduced in this case including a bundle of evidence consisting of your reflective statement, a reference and letters from your GP. The panel took into account the submissions from Ms Caslin, on behalf of the NMC, and those of Ms McMahon on your behalf. You also gave oral evidence under affirmation at this stage. The panel was of the view that you were clear in your responses to questions and gave your evidence in an assured manner. You gave the panel a summary of your clinical practice history and a background of the circumstances leading to your failure to disclose to Harbour Healthcare that you had been dismissed from your former employer. You said that you were not thinking properly when you completed your application form for Harbour Healthcare. You said 15
you were handed the form shortly before your interview and asked to fill the form as best as you could. You outlined the difficult health and personal circumstances at the time of the incident. You accepted that you should have told the truth about your dismissal from the Trust. You told the panel that your conduct brought shame on the nursing professional because as a nurse you re supposed to be honest and act with integrity at all times. You said it was important for nurses to be honest as people place trust in nurses during a vulnerable stage of their lives. You also stated that your actions let down your colleagues, managers and the residents who you had a great relationship with, as well as your family. You said you would never repeat such conduct in the future. You explained the circumstances and the background of the matters leading to your conviction. You told the panel that at the time of the incidents you struggled day to day, due to being very stressed, depressed and anxious but you really loved your job at Bowerfield. You said it was a very busy time at Bowerfield and you were the only registered nurse caring for about 50 residents. However, those factors did not excuse your actions in relation to your conviction. You accepted that what you did was theft and the medication was not for you to take. You said you were not open and honest with the police during your interview because you panicked. However, in hindsight, you should have told the truth. You said you were devastated by the conviction and disgusted by your actions. You explained how your conviction had a negative impact on the public s perception of the profession as well as its negative impact on the resident s family, your colleagues and employers. You reassured the panel that you would never put yourself in a similar position again and that the theft was a stupid thing to do. You told the panel that you think about your actions daily and you have felt a lot of remorse, shame, guilt and you are horrendously sorry for your actions. You told the panel that you are currently subject to an interim suspension order but you would appreciate the opportunity to return to your nursing career when your health improves. You said you believe that you are a good and caring nurse. 16
Submissions on misconduct and impairment: Ms Caslin referred the panel to the case of Cheatle v GMC [2009] EWHC 645 (Admin) with regard to the two stage approach it should take when considering misconduct and impairment. She submitted that there is no burden or standard of proof at this stage and in determining misconduct the panel may find assistance in the case of Roylance v General Medical Council (no. 2) [2000] 1 AC 311 which defines misconduct 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. Ms Caslin submitted that the matters found proved in charges 2, 3 and 4 amounted to breaches of The Code: Professional standards of practice and behaviour for nurses and midwives (2015) ( the Code ). She submitted that the matters found proved in respect of charges 2 and 3 were sufficiently serious to amount to misconduct. Ms Caslin directed the panel to specific paragraphs and identified where, in the NMC s view your actions amounted to misconduct. She submitted that your actions were in breach of the requirements of standards 20 (20.2), and 20.4 in respect of your conviction. Ms Caslin then moved on to the issue of impairment and referred the panel to the cases of Cohen v General Medical Council [2008] EWHC 581 (Admin) and Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin), particularly paragraph 76 of Mrs Justice Cox s judgement, wherein she endorsed the questions formulated by Dame Janet Smith in her Fifth Shipman Report. Ms Caslin submitted that whilst this is primarily a public interest case and no patients came to harm, there was an inherent risk of harm to patients where prescribed patient medication is stolen. She therefore submitted that all four limbs in paragraph 76 of Mrs Justice Cox s judgement in the case of Grant are engaged in your case. 17
With regards to the question of current impairment, Ms Caslin invited the panel to consider your level of insight, remorse, remediation and the risk of repetition. She invited the panel to consider whether your misconduct had been remedied, noting that dishonesty, which is attitudinal in nature is difficult to remediate. Ms Caslin referred the panel to your reflection and oral evidence where you gave assurances to this panel that your dishonesty would not be repeated. However, she noted that you have not practised as a nurse for some 18 months and submitted that you have not been able to demonstrate, within clinical practice, that the risk of repetition of your dishonesty has been eliminated. Ms Caslin submitted that in view of the nature of your conviction and misconduct involving dishonesty in a professional setting and its detrimental impact on the reputation of the profession, a finding of impairment was necessary in order to uphold proper professional standards and uphold public trust and confidence in the NMC as a regulator. Ms McMahon, on your behalf, submitted that you accept your fitness to practise is impaired by reason of your misconduct and conviction. However, there was no evidence that you acted in a way which caused harm to patients. Therefore, the circumstances of your case only engaged the public interest. Ms McMahon submitted that you fully accepted your dishonesty and conviction and the adverse impact it had on the public s perception. She referred the panel to your reflection and oral evidence and submitted you have expressed genuine remorse. Ms McMahon referred the panel to your evidence in relation to your health at the time, noting that what happened had a significant impact on you and you paid a heavy price for your actions. However, you readily accepted responsibility for your actions and that your health did not excuse your conduct. She submitted that you have fully engaged and provided explanations for your actions without seeking to minimise them. Ms McMahon submitted that you appreciate that what you did was wrong and that your fitness to practise is impaired. 18
The panel heard and accepted the advice of the legal assessor which included reference to the cases of Roylance; Grant; and Cohen. Decision on misconduct: When determining whether the facts found proved amount to misconduct the panel had regard to the terms of the relevant Code in force at the time. 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. The panel was of the view that your actions in charges 2 and 3 did fall significantly short of the standards expected of a registered nurse, and that they amounted to a breach of the 2015 Code, specifically standards: 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 20.2 act with honesty and integrity at all times 20.4 keep to the laws of the country in which you are practising. The panel bore in mind that breaches of the Code do not automatically equate to a finding of misconduct. However, the panel determined that your failure to disclose your dismissal from the Trust to Harbour Healthcare, which resulted in your dishonesty, fell far below the standard expected in the circumstances. The panel was of the view that 19
dishonesty in a professional context is particularly grave and amounts to misconduct of a serious nature. The panel concluded that your actions, as found proved in charges two and three, fell significantly below the standard required of a registered nurse and therefore amounted to misconduct. Decision on impairment: The panel next went on to decide if as a result of this misconduct and your conviction, your fitness to practise is currently impaired. The panel had regard to the guidance given in the judgment of Mrs Justice Cox in the case of Grant. At paragraph 74 of that judgment, she said: In determining whether a practitioner s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances. Mrs Justice Cox went on to say in Paragraph 76, quoting from Dame Janet Smith in her Fifth Shipman Report at 25.67: 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. 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; and/or b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or 20
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 considered that your actions had engaged limbs b, c, and d of the guidance in Grant quoted above. Notwithstanding that your behaviours were entirely unacceptable, the panel noted that the medication you stole belonged to a recently deceased resident and should have been discarded properly. In the circumstances, the panel was of the view that the first limb of Grant was not engaged as there was no evidence that you have in the past acted so as to put patients at unwarranted risk of harm. The panel had regard to the fact that patients and the public place trust in the nursing profession, and that nurses are expected to act in a way which justifies that trust. Honesty and integrity are the bedrock of the nursing profession and the panel considered that these were fundamental tenets of the profession. The panel therefore considered that your actions, in respect of the charges found proved breached fundamental tenets of the profession identified above. Your actions were also of such a nature as to bring the profession into disrepute and you acted dishonestly. The panel further noted that the offence of theft, which resulted in your conviction, was serious and an offence of dishonesty. The panel bore in mind that the issue it had to determine was that of current impairment. It therefore considered whether you are liable in future to act in such a way as to breach fundamental tenets of the profession, bring the profession into disrepute or act dishonestly. The decision about the risk of repetition in this case would be informed by consideration of the level of insight and remorse you have demonstrated and by whether your misconduct has been or is capable of being remedied. The panel had careful regard to your reflective statement and took into account your oral evidence. 21
The panel first considered your insight into the shortcomings in your professional practice and whether they had been remediated. It took into account the fact that you made admissions to some of the charges from the outset and that you appreciated and accepted that your actions amounted to misconduct and impairment. The panel determined that you expressed genuine remorse for your misconduct and the matters leading to your conviction. The panel had regard to the fact that you have clearly reflected on your failings and demonstrated some insight and remorse in your reflective statement as well as in the course of your oral evidence. You were able to explain the particular circumstances leading to your misconduct and conviction and assured the panel that there would be no repeat. The panel noted in your reflective statement and oral evidence that you have demonstrated some understanding of your dishonesty and how it impacted negatively upon the residents, your colleagues, former employers and the reputation of the nursing profession as a whole. The panel went on to consider remediation and the risk of repetition. The panel had no evidence of concerns about your clinical skills, notwithstanding that you have not practised as a registered nurse for some 18 months. The panel was of the view that your case related to behavioral concerns arising from your dishonesty, noting that dishonesty is inherently difficult to remediate. The panel considered that your dishonest conduct which was repeated within a relatively short period of time was aggravated by the fact that it occurred in the course of your professional practice. The panel took into account the assurances you made in these proceedings that you would not repeat your dishonesty. However, the panel considered that as you have not practised as a nurse since the incidents in question, you have not been able to demonstrate that you can practise clinically without any repetition of your dishonesty. The panel therefore concluded that a risk of repetition of your dishonesty remains and there was a risk that you could in the future breach fundamental tenets of the profession and bring the profession into disrepute. The panel went on to consider whether a finding of impairment was necessary to uphold proper professional standards and public confidence in the profession. The panel considered that your dishonesty and conviction were particularly serious and anything 22
other than a finding of impairment would not be appropriate. In view of these considerations, the panel determined that, irrespective of the likelihood of repetition, a finding of impairment on public interest grounds was required to mark your behaviour as unacceptable. Having regard to all of the above, the panel was satisfied that your fitness to practise is currently impaired by reason of your misconduct and conviction. Determination on sanction: The panel has considered this case very carefully and decided to make a striking-off order. The effect of this order is that the NMC register will show that your name has been struck-off the register. In reaching this decision, the panel has had regard to all the evidence that has been adduced in this case, together with the submissions of Ms Caslin on behalf of the NMC and those of Ms McMahon on your behalf. Mc Caslin on behalf of the NMC addressed the panel on the aggravating and mitigating features of your case and made submissions in relation to the approach the panel should take at the sanction stage. She submitted that the NMC s initial sanction bid was that of a striking off order. In light of the panel s finding that your fitness to practise is impaired solely on public interest grounds, the NMC was still of the view that the seriousness of your case requires your removal from the register. However, whether temporary removal for 12 months or a complete striking off order would suffice, was a matter for the panel s independent judgement. She referred the panel to the case of Parkinson v NMC [2010] EWHC 1898 (Admin) in relation to dishonesty and the cases of Lusinga v NMC [2017] EWHC 1458 (Admin) and Watters v NMC [2017] EWHC (Admin) 1888, for consideration of the types of dishonesty. Ms McMahon on your behalf accepted that your misconduct and conviction were serious, but she submitted that they were not incompatible with continuing registration. 23
She submitted that recent case law shows that a striking off order should not be seen as the default outcome in cases involving dishonesty. She addressed the panel on several mitigating features in your case. She submitted that your dishonest conduct was not premeditated, it was spontaneous, and although you delayed admitting theft to the police, you pleaded guilty in court. She invited the panel to consider that you have been punished for your conviction and to take into account the significant impact these matters had on your health. She submitted that no patients came to harm as a result of your actions and your dishonesty was not influenced by financial gain, nor was it systematic. Ms McMahon submitted that you have learned a salutary lesson from these matters. She submitted that taking into account all of your circumstances and your 14 year career in healthcare, this was not a case where a striking off order would be appropriate. The panel heard and accepted the advice of the legal assessor. The panel has borne in mind that any sanction imposed must be appropriate and proportionate and, although not intended to be punitive in its effect, may have such consequences. The panel had careful regard to the Sanctions Guidance ( SG ) published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. The panel first considered the aggravating and mitigating factors in your case. The panel identified the following as aggravating factors in your case: Both acts of dishonesty occurred within a professional context; Your dishonest conduct was repeated within a relatively short period of time; The theft which resulted in your conviction involved a significant amount of medication; You denied your theft to the police when arrested and interviewed; Your dishonesty involved a breach of trust in relation to two employers. 24
The panel identified the following as mitigating factors in this case: You demonstrated some insight and expressed genuine remorse; Your early admissions to some of the charges in these proceedings; You pleaded guilty to the theft of medication, 4 months later; There was no patient harm as a result of your misconduct or conviction; Your extenuating health and personal circumstances at the time of the incidents; No evidence of previous adverse regulatory findings; A positive professional testimonial from a former mentor. The panel then turned to the question of which sanction, if any, to impose. It considered each available sanction in turn, starting with the least restrictive sanction and moving upwards. The panel first considered whether to take no action but concluded that this would be inappropriate. The panel decided that taking no further action would be inadequate to mark the seriousness of your conviction and the misconduct found. To take no action would therefore not be in the public interest of declaring and upholding standards and maintaining public confidence in the profession. Next, in considering whether a caution order would be appropriate in the circumstances, the panel took into account the SG, which states that a caution order 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 was satisfied that your impairment was not at the lower end of the spectrum. Notwithstanding the mitigating factors identified above the panel decided that a caution order would be insufficient to mark the seriousness of your misconduct and conviction, and to maintain public confidence in the profession and the NMC as its regulator. The panel next considered whether placing conditions of practice on your registration would be a sufficient and appropriate response. The panel was mindful that any 25
conditions imposed must be proportionate, measurable and workable. The panel was satisfied that there are no practical or workable conditions that could be formulated, given that there are no concerns regarding your clinical skills. The concerns highlighted in your case related to behavioural issues and the panel concluded that it was not possible to formulate conditions which would address the matters emanating from the findings of dishonesty. In any event, the panel determined that a conditions of practice order would not adequately satisfy the public interest considerations arising from your misconduct and conviction. The panel then went on to consider whether a suspension order would be an appropriate sanction. The SG indicates that a suspension order may be appropriate where: the misconduct is not fundamentally incompatible with continuing to be a registered nurse or midwife in that the public interest can be satisfied by a less severe outcome than permanent removal from the register. This is more likely to be the case when some or all of the following factors are apparent (this list is not exhaustive): A single instance of misconduct but where a lesser sanction is not sufficient. No evidence of harmful deep-seated personality or attitudinal problems. No evidence of repetition of behaviour since the incident. The panel is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour. The panel took into account that in your reflective statements and oral evidence, you demonstrated some insight and were remorseful for your dishonest conduct and conviction. However, the panel considered that your misconduct and conviction had breached fundamental tenets of the profession and brought the profession into disrepute. The panel bore in mind its findings that there is a risk of your dishonesty being repeated. Furthermore, your misconduct and conviction related to two instances 26
of dishonesty in a professional context, therefore it was not isolated. The panel considered that your dishonesty in relation to your failure to disclose to Harbour Healthcare that you had been dismissed was significant and not at the lower end of spectrum of dishonest conduct. It involved failing to be open and honest and lying within a professional context to a potential nursing employer when you knew that you had been dismissed by the Trust. The panel was also of the view that the dishonesty which resulted in your conviction was not at the lower end of spectrum of dishonest conduct as it involved the theft of a substantial amount of medication which was well in excess of a therapeutic dose you claimed to require. The panel determined that the dishonesty involved a breach of trust to your employers at Bowerfield, who were made aware by you of the concerns you had with your previous employment and your dishonest application form. However, you again beached the trust of this new employer by repeating your dishonest conduct by stealing a large amount of drugs from that employer. Having carefully considered the guidance on the seriousness of dishonesty in the SG, the panel concluded that your dishonesty was significant. In the panel s judgement, your dishonesty, which was repeated within a relatively short period of time was indicative of a serious attitudinal problem. In these circumstances, the panel determined that the seriousness of your misconduct and conviction, as highlighted by the facts found proved was a significant departure from the standards expected of a registered nurse. The panel concluded that the behaviour demonstrated a serious breach of the fundamental tenets of the profession. Balancing all of these factors, panel has determined that a suspension order would not be an appropriate or proportionate sanction. Finally, in looking at a striking-off order, the panel took note of the following paragraphs of the SG; 27