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Conduct and Competence Committee Substantive hearing 28 May 2014 & 8 July 2014

Nursing and Midwifery Council, Temple Court, 13a Cathedral Road, Cardiff

Name of Registrant Nurse: Mr Michael Roberts NMC PIN: 11A0056O Part(s) of the register: RN1 - Sub Part 1

Adult Nursing January 2011

Area of Registered Address: Wales Type of Case: Determination of another body/Misconduct Panel Members: Matthew Fiander (Chair, Lay member) Helen Potts (Lay member)

Jacqueline Rendell (Registrant member) Legal Assessor: Juliet Gibbon Panel Secretary: Sarah Crewe (28 May 2014) Sebastian Harrison (8 July 2014) Nursing and Midwifery Council: Represented by Mr Douglas Lloyd, case

presenter, instructed by the NMC Regulatory Legal Team (28 May 2014).

Represented by Ms Kakoly Pande, case

presenter, instructed by the NMC Regulatory Legal Team (8 July 2014)

Mr Roberts: Present and represented by Ms Cooper,

instructed by the Royal College of Nursing. Facts proved: 1, 2, 3, 4, 5, 6 Facts not proved: none Fitness to practise: Impaired Sanction: Striking off Order Interim order: Interim Suspension order for 18 months

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Charges: That you, a registered nurse:

1. Having been a registered nurse on the register maintained by the Nursing

Council of New Zealand (NCNZ), you have been the subject of a

determination by the New Zealand Health Practitioners Disciplinary

Tribunal that your fitness to practise is impaired, in that;

on 15 May 2012 you were found guilty of professional

misconduct as defined in sections 100(a) and (b) of the Health

Practitioners Competence Assurance Act 2003 and your

registration with the NCNZ was suspended for three years.

2. Between 24 May 2011 and 18 February 2012, whilst employed by HCA

International, you failed to disclose that your fitness to practise was under

investigation by the NCNZ.

3. In self-referring to the NMC, on a referral form dated 16 September 2011

submitted by you to the NMC, gave false information in respect the

allegations under investigation by the NCNZ.

4. Gave false information in an application form for employment as a

registered nurse received by Countess of Chester Hospital NHS

Foundation Trust on 6 November 2011, in that;

a) in answer to the question “are you currently the subject of a

fitness to practice investigation or proceedings by a licencing or

regulatory body in the UK or in any other country?” you

responded “no” when you knew that your fitness to practise was

under investigation by the NCNZ.

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5. Failed to disclose all your previous convictions to the NMC;

a) in an NMC application for registration form dated 30 July 2010;

b) in a self declaration of good health and good character form dated

15 January 2011.

6. Your conduct in respect of charge 2; and/or charge 3; and/or charge 4;

and/or charge 5 was dishonest.

And your fitness to practise is impaired by reason of the determination set out above at

charge1.

And in light of charges 2, 3, 4, 5, 6 above your fitness to practise is impaired by reason

of your misconduct.

Application under Rule 19: Mr Roberts,

You made an application under rule 19 of The Nursing and Midwifery Council (Fitness

to Practise) Rules Order of Council 2004 (The Rules) which states that:

19.— (3) …hearings may be held, wholly or partly, in private if the Committee is

satisfied -

(a) having given the parties, and any third party from whom the Committee

considers it appropriate to hear, an opportunity to make representations; and

(b) having obtained the advice of the legal assessor,

that this is justified (and outweighs any prejudice) by the interests of any party or of

any third party (including a complainant, witness or patient) or by the public interest.

You invited the panel to hear certain matters pertaining to your health and sensitive

personal matters in private.

Mr Lloyd did not oppose the application.

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The panel heard and accepted the advice of the legal assessor.

The panel concluded that any part of this hearing relating to your health should be

heard in private.

All other matters should proceed in a public hearing.

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 Mr Lloyd on behalf of the NMC and

those made by Ms Cooper on your behalf.

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.

At the start of this hearing the panel was provided with an agreed statement of facts.

This reads as follows:

1. Mr Roberts admits the following charges:

That you, a registered nurse:

1. Having been a registered nurse on the register maintained by the Nursing

Council of New Zealand (NCNZ), you have been the subject of a determination

by the New Zealand Health Practitioners Disciplinary Tribunal that your fitness

to practise is impaired, in that;

on 15 May 2012 you were found guilty of professional misconduct

as defined in sections 100(a) and (b) of the Health Practitioners

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Competence Assurance Act 2003 and your registration with the

NCNZ was suspended for three years.

2. Between 24 May 2011 and 18 February 2012, whilst employed by HCA

International, you failed to disclose that your fitness to practise was under

investigation by the NCNZ.

3. In self-referring to the NMC, on a referral form dated 16 September 2011

submitted by you to the NMC, gave false information in respect the allegations

under investigation by the NCNZ.

4. Gave false information in an application form for employment as a registered

nurse received by Countess of Chester Hospital NHS Foundation Trust on 6

November 2011, in that;

a) in answer to the question “are you currently the subject of a

fitness to practice investigation or proceedings by a licencing or

regulatory body in the UK or in any other country?” you

responded “no” when you knew that your fitness to practise was

under investigation by the NCNZ.

5. Failed to disclose all your previous convictions to the NMC;

b) in an NMC application for registration form dated 30 July 2010;

c) in a self declaration of good health and good character form dated

15 January 2011.

6. Your conduct in respect of charge 2; and/or charge 3; and/or charge 4; and/or

charge 5 was dishonest.

And your fitness to practise is impaired by reason of the determination set out above at

charge1.

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And in light of charges 2, 3, 4, 5, 6 above your fitness to practise is impaired by reason

of your misconduct.

2. The facts are as follows:

Mr Roberts trained as a nurse in New Zealand and registered with the NCNZ in

2005. He registered with the Nursing and Midwifery Council in January 2011. On 21

May 2012, the NMC received a self-referral form by email from Mr Roberts in which

he informed the NMC that he had been found guilty of misconduct by the NCNZ in

that he had engaged in a sexual relationship with a patient and his registration had

been suspended for a period of three years. The allegations were that he had,

between about December 2007 and November 2010, and whilst employed as a

registered nurse in Ward 5B (a neurosurgery and neurology ward) (“the Ward”) of

Dunedin Hospital, New Zealand, entered into an inappropriate/sexual relationship

with a patient in his care and/or formerly in his care.

Mr Roberts stated in the email that he had been suspended for professional

misconduct regarding the three year relationship that ended in November 2010. He

stated that she was a patient on the Ward that he worked on and, on a few

occasions, was cared for by him while in the relationship. He confirmed that the

relationship started when she was a patient on the Ward. He stated that he was due

to attend a professional boundaries course. At the end of his email, he stated:

“I am not sure where to go and what to do from here as you can imagine I am very

distraught about all this but take full responsibility for my actions and I do see that

professional boundaries have been crossed hence the actions I am taking…”

Mr Roberts had previously sent a self-referral form by email to the NMC on 16

September 2011 stating that he was under investigation by the NCNZ in relation to

the allegation. However, the NMC had not received the self-referral as the email was

sent to the incorrect address (fitness to practice rather than practise).

In his self-referral in September 2011, Mr Roberts stated that the complaint to the

NCNZ had been made by Patient A with whom he had been in a relationship

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between 2008 and 2010. He stated that the patient was a patient on his Ward but

was not his patient. The relationship began after she was discharged from the Ward

when they met in a café and, upon having a conversation about how she was a

former patient on the Ward, he realised that he recognised her. A relationship began

between them and they lived together for over 12-months until Mr Roberts moved to

the United Kingdom. The self-referral form attached to the September 2011 email

was the same self-referral form that was attached to his May 2012 email. However,

in the May 2012 email itself he had set out the correct facts (although did not explain

that the information in the form was incorrect).

Following the referral in May 2012, the NMC made contact with the NCNZ and

received disclosure from them on 13 June 2012. The disclosure confirmed that Mr

Roberts had been the subject of disciplinary proceedings held on 15 May 2012 in

New Zealand before the Health Practitioners Disciplinary Tribunal (“the Tribunal”) in

which he had faced charges of professional misconduct as follows:

1. That during the period on or about December 2007 to 10 November 2010,

while employed as a registered nurse in Ward 5B of Dunedin Hospital, New

Zealand it is alleged that Mr Roberts entered into an inappropriate and/or

sexual relationship with [Patient A], a patient in his care and/or formerly in his

care. In particular:

1.1While [Patient A] was an inpatient in Ward 5B where Mr Roberts was

employed, he gave [Patient A] his cell phone number;

1.2While [Patient A] was an inpatient in Ward 5B where Mr Roberts was

employed, Mr Roberts send [Patient A] a number of text messages;

1.3On 26 December 2007, Mr Roberts commenced an inappropriate

and/or sexual relationship with [Patient A].

The conduct alleged in Charge 1 amounts to professional misconduct pursuant

to section 100(1)(a) or (b) of the Health Practitioners Competence Assurance

Act 2003 and particulars 1.1, 1.2 and 1.3 either separately or cumulatively, are

particulars of that professional misconduct.”

Mr Roberts admitted Charge 1 before the Tribunal and an agreed statement of facts

was provided to the Panel, setting out the background to the allegations. Mr Roberts

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was employed on the Ward on a fixed-term contract. [Patient A] was admitted to the

Ward in December 2007 with myasthenia gravis, a neurological condition affecting

the muscles. Mr Roberts completed her admission documentation. The relationship

began to cross professional boundaries when Mr Roberts gave [Patient A] his mobile

telephone number whilst she was on the Ward. He gave her a piece of paper with

his name and mobile telephone number written on it and he stated “This is highly

unprofessional” before leaving the room. The two then began to exchange text

messages. When [Patient A] was discharged following her December 2007

admission, the relationship became sexual. Mr Roberts moved in with [Patient A] in

December 2009 until he ended the relationship in November 2010. Whilst their

relationship was ongoing, he nursed [Patient A] on an occasion when she was

admitted to the Ward in September 2008. After the relationship ended, [Patient A]

reported it to the Nurse Manager of the Ward when she met by chance in November

2010. [Patient A] stated that, at the time she met Mr Roberts, her self-esteem was

very low due to her illness.

Following the guilty plea to Charge 1, the Tribunal found professional misconduct

proved. Mr Roberts’ registration with the NCNZ was suspended for three years from

15 May 2012 and he was censured and ordered to pay $10,000 in costs. A three

year suspension was imposed which is most restrictive sanction that can be

imposed by the NCNZ save a striking-off order (referred to as a “cancellation”).

Following the self-referral to the NMC, on 29 May 2012, during a telephone

conversation between Mr Roberts and his case officer at the NMC, Mr Roberts

stated that he was due to start bank nursing with HCA International (“HCA”) the

following day and gave the NMC his employer’s details. Mr Roberts was told that

the NMC would contact HCA. During the NMC investigation, it was confirmed by

HCA that Mr Roberts was employed by them to work as staff nurse at the Harley

Street Clinic from 7 March 2011 to 18 February 2012. HCA were not informed by Mr

Roberts that his fitness to practise was under investigation by the NCNZ and it was

only upon being contacted by the NMC in May 2012 that they became aware of this.

The Clinic were informed by Mr Roberts of the allegations before the NCNZ when Mr

Roberts contacted the Clinic in May 2012 and asked the Adult Matron if there was

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any work available. The Harley Street Clinic have confirmed that Mr Roberts was a

very good nurse and that there were never any clinical concerns about him.

On 1 June 2012 the NMC received a referral form from Countess of Chester

Hospital NHS Foundation Trust (“the Trust”) where the registrant had been

employed as a nurse from 24 January 2012 to 21 May 2012 on a temporary contract

within the Urgent Care Division of the Outpatient Department of the Hospital. Mr

Roberts had informed the Trust in April 2012 that he was under investigation by the

NCNZ following an allegation that he had a relationship with a patient whilst she was

under his care. He took annual leave from the Trust to attend his disciplinary

hearing. Mr Roberts had originally applied for his role using an online application

form on 6 November 2011. He was offered the position on 19 December 2011. In his

application form he was specifically asked “are you currently the subject of fitness to

practise investigation or proceedings by a licensing or regulatory body in the UK or

in any other country?”. Mr Roberts answered “No”.

Upon the allegations coming to light, a criminal records bureau check was carried

out on Mr Roberts after he revealed a criminal record in his interview. Upon his

return from New Zealand, he first reported for duty on 21 May 2012. He informed the

Trust of the outcome of his hearing. As he was subject to a temporary contract, the

Trust ceased his employment and did not proceed with an internal investigation. It

was the same day that he re-sent the self-referral to the NMC. It has been confirmed

by the Trust that they had no issues with Mr Robert’s clinical practice.

Upon being notified by the Trust that Mr Roberts had a criminal record, the NMC

undertook police national computer check which revealed that he had the following

convictions:

• A conviction on 23 June 1993 from Rhuddlan Magistrates’ Court for obtaining

property by deception x 2 (with 4 x TICs) for which he received a fine of £60

• A conviction on 3 February 1994 from Rhuddlan Magistrates’ Court for theft x

2, handling and obtaining property by deception x 2 for which he received a 2

year probation order

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• A conviction on 30 March 1994 from Rhuddlan Magistrates’ Court for handling

stolen goods for which he received a fine of £100

• A conviction on 5 January 1995 for theft for which he received a community

service order of 200 hours and a fine of £30

• A conviction on 20 January 1995 for obtaining property by deception for which

he received a fine of £200

• A conviction on 7 September 1995 for driving whilst disqualified and using a

vehicle while uninsured for which he received a community service order of

180 hours, a fine of £120 and was disqualified from driving for 18 months

In his application to be admitted to the NMC Register, Mr Roberts submitted a

signed application form dated 30 July 2010 which was received by the NMC. In the

application form he was required to confirm whether he had ever been convicted of

any criminal offence or had been issued with any cautions. In considering the

application, the Registrar must be satisfied that the applicant is capable of safe and

effective practice as a nurse or midwife. If the applicant indicates that they have

received a police caution or conviction, the Registrar must consider this as part of

the application.

In his application form, Mr Roberts disclosed that he had received a speeding fine

for $200 in 2002. He did not declare any further cautions or convictions. He signed a

declaration on the form that the information given was true and that, should any of

the details prove to be false, he could be liable to prosecution.

Mr Roberts’ application had been considered by the Registrar’s advisory group

(“RAG”) and, upon receipt of further documentation requested, Mr Roberts was

admitted to the Register on 18 January 2011. At no point was the Registrar made

aware of Mr Robert’s other convictions. One of the documents considered was the

self-declaration of good health and good character dated 15 January 2011. The form

explains under the heading “what is good character” that:

“the NMC needs to know if you have been convicted of a crime as this may bring

your character into question. It is for the NMC to decide whether a nurse or midwife

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does or does not meet its requirements for good character and therefore you must

tell us about any crime for which you have been convicted”.

Mr Roberts signed the declaration on the form to confirm that his character was

sufficiently good to enable him to practise safely and effectively. This was despite

failing to declare his convictions in his application and having clarification of what

was “good character”.

Mr Roberts has been subject to an interim suspension order imposed by the NMC

on 20 June 2012. Mr Roberts attended the interim order hearing and was

represented. He gave evidence to the Panel and accepted that he had been

dishonest with the NMC and the Trust. He was asked what his attitude now was to

his withholding of the correct information. He stated:

“I feel ultimately disgusted with myself that I did it. I should have been upfront in the

first place, but I found it difficult. Now I am being a lot more open and frank and

honest about stuff. I should not have done the things I have done”.

He was asked what he sees the potential effects of breaching professional

boundaries. He responded:

“Horrendous. I can’t really envisage. People should never do it. We should never

cross that professional boundary. We should never use that power imbalance. I am

exceptionally sorry for what I have done and how I have done it, and how [Patient A]

has been affected by it…nurses should never take advantage of their vulnerability

and succumb to that power imbalance, I suppose. Physically and mentally it affects

them…the patient could be affected life-long”.

Consensual Panel Determination (CPD) was considered by the NMC but an

agreement was not reached between the NMC and registrant.

Mr Roberts has not practised as a nurse since his termination by the Trust. Mr

Roberts has subsequently been employed as a Health Care Assistant.

The panel heard evidence from you under oath.

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At the start of this hearing you made admissions to charges 1, 2, 3, 4, 5 and charge 6.

Following you giving evidence under oath it became apparent that you did not accept

that your actions in relation to charge 5 (a) and (b) were dishonest. The panel was

therefore invited to consider the facts of charge 6 in relation to charge 5 (a) and (b). The

panel considered all the evidence and made the following finding in relation to charge 6

in respect of charge 5 (a) and (b).

6. Your conduct in respect of… charge 5 was dishonest

This charge is found proved in its entirety.

Given the change in your evidence in relation to dishonesty in respect of this charge the

panel was referred to the case of R v Ghosh [1982] Q.B. 1053 and the two part test

which applies when reaching its decision on this charge. First is the objective test;

whether according to the ordinary standards of reasonable and honest people what was

done by you was dishonest. If it was dishonest by those standards then secondly, the

subjective test should be applied and the panel had to consider whether you must have

realised that what you were doing was, by the above standards, dishonest.

The panel had sight of the declaration form that you submitted to the NMC upon

application for registration, dated 30 July 2010, in which you disclosed a single

conviction for speeding. You did not disclose 6 other convictions, 5 of which relate to

dishonesty between 1993 and 1995.

The panel also noted the registration declaration of good health and good character

form dated 15 January 2011, which you signed without declaring any of your

convictions. The panel was of the view that both forms were clear on their face that

disclosure of any conviction is required and both forms contain declarations of truth

which you signed.

The panel considered that you knew that the information that you provided on the forms

was incorrect, misleading and false. You stated that you informed your employers about

your convictions because they would find out when they ran a CRB check. The panel

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did not accept your evidence that you did not disclose the convictions to the NMC as

you believed that they were ‘spent’ in circumstances where you did disclose an 8 year

old speeding conviction in New Zealand in the July 2010 form. The panel did not find

your evidence in this regard to be credible.

You told the panel that during the period of time when the forms were signed your

normal reaction was to be dishonest, to brush things aside and not to look at the

consequences of your dishonesty. You told the panel that this was an ingrained

behaviour from your childhood and your instinct was to be dishonest to protect yourself.

Accordingly the panel concluded that it was more likely than not that you knew that you

were required to disclose all of your convictions but that you chose not to.

Taking all of the evidence before it into account the panel considered that a reasonable

and honest person in receipt of all the information before this panel would find that

failing to declare convictions to your regulator was dishonest. The panel considered that

the requirements on the forms to disclose ‘any’ criminal convictions was not ambiguous

and that at the time of signing the declarations you knew or must have known that your

actions were dishonest. As such the panel finds charge 6 proved in full.

Misconduct and impairment Having announced its findings on all the facts, the panel then moved on to consider

firstly whether the facts found proved in charges 2 - 6 amount to misconduct and, if so,

secondly whether your fitness to practise is currently impaired. The NMC defines fitness

to practise as a registrant’s suitability to remain on the register unrestricted.

Mr Lloyd referred the panel to the agreed statement and the relevant documents that

the panel had before it. Mr Lloyd reminded the panel that it did not have to consider

charge 1 when looking at the matter of misconduct; however it would need to consider it

as part of its impairment considerations.

You told the panel the background of the matters that led to the case against you in

New Zealand. You told the panel that at the time you did not understand that what you

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were doing was inappropriate and were not aware that how you came across to others

may have been inappropriate. You told the panel that you have done a lot of work on

that issue and you now have an understanding of professional boundaries and

appropriate behaviour.

You told the panel that upon returning to the United Kingdom (UK) you undertook

training to allow you to work as a registered nurse in the UK. You told the panel that you

were not aware when you returned to the UK that there were investigations being

undertaken by the NCNZ and that it was not until you had already been employed for

some time as a nurse in the UK that you became aware of this. You told the panel that

you did not inform your employer in London immediately as you were scared of what

would happen and you wanted to protect yourself. You further stated that you did not

disclose the ongoing investigations being undertaken in New Zealand as you wanted to

obtain employment as a registered nurse in Wales.

You told the panel that the topic of professional boundaries was not covered in any

depth during your initial training to become a nurse. You stated that subsequent to the

incident in New Zealand you undertook a three day course on professional boundaries

and that you undertook further sessions on this following the course being completed.

You told the panel that you undertook this three day professional boundaries course in

July 2012 in London. You told the panel that you took away from the course a better

understanding of professional boundaries and how to identify what was and was not

appropriate information to give to others. You told the panel that you would, in the past,

give patients personal information such as what you did outside of work or how you

were unhappy in your relationship. You stated that at the time you believed that this was

something that put those in your care at ease, but you now understand that it is

inappropriate.

You told the panel that the course had helped you to identify the behaviour that led to

you crossing professional boundaries and acting dishonestly. Further you now have the

tools to enable you to change your behaviour in the future. You told the panel that one

of these tools is that you take yourself into a room for up to an hour and reflect on what

you have done that day; have you acted dishonestly and if so how did that make you

feel; have you acted honestly and how did that make you feel.

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You told the panel that the reason that you informed your employer in Wales of the New

Zealand proceedings was because a ruling had been made in New Zealand and you

had to inform the NMC with the result that your employer would find out. You told the

panel that you referred yourself to the NMC in September 2011 because you wanted to

be honest and open and get help. You accepted that you were not honest in the

information that you provided to the NMC on that referral and said that this was because

you didn’t understand the process fully. The September 2011 referral however did not

reach the NMC as you submitted it to an incorrect email address. You again referred

yourself to the NMC in May 2012 and included information that you had not provided in

the first referral.

You provided the panel with further information on the criminal convictions that you had

received between 1993 and 1995. You told the panel that the dishonesty convictions all

related to you having taken your father’s property. You told the panel that you did not

declare the convictions when you registered with the NMC as it was your understanding

that you did not need to declare spent convictions.

You told the panel that you had been working as a healthcare assistant/trainer in a

nursing home and that your employer is very supportive of you. You told the panel that

you undertook further study in order to obtain a teaching qualification as you enjoyed

this line of work and you were unsure what the outcome of this hearing would be.

You told the panel that when you first looked at the charges against you you felt bad

about yourself. You told the panel that, having undertaken the professional boundaries

training course and gained a better understanding, you now feel proud of how far you

have come. You told the panel that this in no way diminishes your behaviour in New

Zealand and if you could apologise to Patient A you would.

You told the panel that you were aware of the NCNZ code of conduct but you did not

fully understand it at that time. You accepted that when you first started the relationship

with Patient A you told her that it was unprofessional of you to be giving her your

contact details. You told the panel that at the time you were newly qualified and did not

fully appreciate the importance of professional boundaries. You stated that you now

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have that appreciation having undertaken the three day course. You told the panel that

with the benefit of hindsight you were now able to identify that Patient A was vulnerable.

You told the panel that when registering with the NMC you did not seek clarification on

whether you needed to disclose your convictions as you believed that you did not need

to disclose spent convictions.

In response to questions from the panel you stated that you would have covered

professional boundaries as part of your initial training but not in great detail. You stated

that you did not recall covering professional boundaries as part of your training in social

work between 1996 and 1998. You stated that you left this course prior to obtaining the

diploma. You told the panel that you have been undertaking a Post Graduate Certificate

in Education and that you are due to graduate in July 2014. You told the panel that you

had informed the educational establishment of your convictions but did not believe that

it was necessary to inform them of either the NCNZ proceedings or the NMC

proceedings as you were not delivering health care to patients.

You told the panel that you understood that honesty is fundamental to nursing as those

receiving care and their families need to be able to trust the person who is delivering

care. You told the panel that you were aware that public trust and confidence in the

profession would be undermined by your dishonesty but you hope that you have taken

steps to reduce that.

You told the panel that you accept that you cannot satisfy this panel that you have

changed what you described as ‘ingrained behaviour’ in acting dishonestly. However,

you asked the panel to give you a chance to move forward. You told the panel that while

you could not guarantee 100% that you would not be dishonest again in the future you

were 99.99% positive that you would not be.

You stated that you now declare your convictions to prospective employers as they

would show up on any CRB check and that your current employers are aware of both

your convictions and the regulatory proceedings against you both in New Zealand and

the UK.

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You told the panel that you had never been dishonest in relation to your clinical care as

a registered nurse.

In respect of the question of misconduct Mr Lloyd referred the panel to the case of

Roylance v GMC (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 by a medical practitioner in the

particular circumstances’

In his submissions Mr Lloyd invited the panel to take the view that your actions in

relation to the facts found proved in charges 2, 3, 4, 5 and 6 amount to multiple

breaches of The code: Standards of conduct, performance and ethics for nurses and

midwives (2008) (the code). He then directed the panel to specific paragraphs and

identified where, in the NMC’s view, your actions amounted to misconduct.

Mr Lloyd then moved on to the issue of impairment, and addressed the panel on the

need to have regard to protecting the public and the wider public interest. This included

the need to declare and uphold proper standards and maintain public confidence in the

profession and in the NMC as a regulatory body. Mr Lloyd referred the panel to the

cases of Ronald Jack 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).

Ms Cooper, on your behalf, submitted that your care of patients had never been called

into question. She reminded the panel that you had accepted from the outset that your

fitness to practise was impaired. She submitted that you had demonstrated to this panel

today that you were taking steps to address the underlying issues that led to your

dishonest behaviour. She submitted that it was for the panel to consider whether in light

of your insight into your behaviour you are currently impaired.

The panel fully considered all the evidence in this case, both oral and documentary, as

well as the submissions made by Mr Lloyd on behalf of the NMC and those made by Ms

Cooper on your behalf. It accepted the advice of the legal assessor.

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Decision on whether the facts found proved amount to misconduct:

When determining whether the facts found proved in charges 2 to 6 amount to

misconduct the panel had regard to the standards set out in the May 2008 edition of the

code which was in force at the time of the incidents in question.

The panel, in reaching its decision, had regard to the public interest and was mindful

that there was no burden or standard of proof at this stage and exercised its own

professional judgement.

The panel has concluded that by acting as you did, you were clearly in breach of each

of the requirements of the code set out below and that your actions did fall significantly

short of the standards expected of a registered nurse.

The people in your care must be able to trust you with their health and wellbeing To justify that trust, you must:

• be open and honest, act with integrity and uphold the reputation of your profession.

50. You must inform the NMC if you have been cautioned, charged or found guilty of a

criminal offence.

51. You must inform any employers you work for if your fitness to practise is called into

question.

61 You must uphold the reputation of your profession at all times.

The panel appreciated that breaches of the code do not automatically result in a finding

of misconduct. The panel concluded, however, that you had demonstrated a prolonged

and sustained pattern of dishonest behaviour.

The panel considered that the facts found proved individually and collectively amount to

misconduct. The panel finds your dishonest behaviour was very serious and fell far

short of the conduct and standards expected of a registered nurse and amounted to

serious misconduct.

Decision on impairment:

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The panel next went on to decide if as a result of this misconduct and the determination

of the NCNZ your fitness to practise is currently impaired.

Nurses occupy a position of privilege and trust in society and must make sure that their

conduct at all times justifies both their patients’ and the public’s trust in the profession.

In this regard the panel considered the judgement of Mrs Justice Cox in the case of

Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2)

Grant [2011] EWHC 927 (Admin) in reaching its decision. In paragraph 74 she said;

74. 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:

76. I would also add the following observations in this case having heard

submissions…as to the helpful and comprehensive approach to determining this issue

formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above.

At paragraph 25.67 she identified the following as an appropriate test for panels

considering impairment of a doctor’s fitness to practise, but in my view the test would be

equally applicable to other practitioners governed by different regulatory schemes.

“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

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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 as found proved by the NCNZ placed a

vulnerable patient at unwarranted risk of harm. The panel took the view that your

behaviour which led to the NCNZ’s determination against you did bring the profession

into disrepute by undermining public trust in the profession. The panel further found that

your behaviour amounted to a breach of a fundamental tenet of the profession in that

you failed to maintain clear boundaries with a patient in your care.

The panel considered that your persistent dishonesty when seeking employment as a

registered nurse brought the profession into disrepute. Honesty, trustworthiness and

integrity are bedrocks of the nursing profession and your behaviour amounts to a

breach of a fundamental tenet of the profession.

The panel considered whether your conduct was remediable and if so, to what extent it

had been remedied. The panel first considered whether or not you had remedied your

behaviour in relation to professional boundaries. The panel noted that you have

undertaken a course in professional boundaries and that you frequently practise the

techniques that you have learnt. The panel considered that the intensive work that you

have done is likely to have addressed your difficulties to the extent that you are not

likely to inappropriately cross a boundary with a patient in your care in the future.

The panel then considered whether you have remedied your dishonest behaviour. The

panel was of the view that your dishonesty is not easily remediable. The panel first

considered the extent to which you have developed insight into your dishonesty. The

panel considered that you have demonstrated some insight into the triggers for your

acting dishonestly and that you now understand that you have been dishonest when

you see it as necessary to protect your own interests. The panel considered, however,

that you have demonstrated only limited insight into the impact of your dishonesty on

public confidence in the profession.

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The panel did not accept your assertion that it was very unlikely that you would act

dishonestly in the future. The panel noted that in your reflective piece written within the

last 6 months you do not address your dishonesty. The panel did not find you to be a

credible witness. By your account your lifelong ingrained dishonesty has been reversed

by attendance on a three day course, use of self-help techniques and your firm intention

not to be dishonest again. The panel could not be satisfied that you have in fact

remedied your ingrained dishonesty. The panel was therefore of the view that you are

liable in the future to act dishonestly in a professional context and thereby bring the

profession into disrepute and breach a fundamental tenet of the profession.

The panel bore in mind that its primary function is not only to protect patients but also to

take account of the wider public interest, which includes maintaining confidence in the

nursing profession and the NMC as a regulator and upholding proper standards and

behaviour. In the panel’s judgement public confidence in the profession and the need to

declare and uphold proper standards of conduct and behaviour would be undermined if

a finding of no impairment was made

Having regard to all of this the panel was satisfied that your fitness to practise is

currently impaired.

Determination on sanction and reasons

Having determined that your fitness to practise is impaired, the panel considered what

sanction, if any, it should impose in relation to your registration. In reaching its decision

on sanction, the panel has considered all the evidence that has been placed before it

and has heard the submissions of Ms Pande, on behalf of the NMC, and Ms Cooper, on

your behalf. It has also taken account of the material presented by you as well as your

own oral evidence and the oral evidence of Mr 1, your current line manager.

The panel has taken into account the guidance set out in the NMC’s Indicative

Sanctions Guidance (June 2012). It had regard to the principle of proportionality,

weighing your interests against the public interest. It has taken account of all the

relevant factors in the case.

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The panel bore in mind that the purpose of a sanction is not to be punitive, although it

may have that effect; rather, the purpose of a sanction is to protect patients and the

wider public interest. The wider public interest includes maintaining public confidence in

the profession and the NMC, and declaring and upholding proper standards of conduct

and behaviour.

Ms Pande submitted that it is not the policy of the NMC to make any positive

submissions on the appropriate sanction. She reminded the panel that the protection of

the public and the safeguarding of the public interest should be integral to its decision

and submitted that it would be inconsistent with its finding on impairment to impose a

sanction at the lower end of the spectrum.

Ms Pande then listed the aggravating and mitigating factors of this case to the panel

and submitted that ultimately sanction was a matter of judgement for the panel. If the

panel were minded to impose conditions, she observed, it ought to ensure that they are

realistic, workable and practicable.

Ms Cooper, on your behalf, acknowledged that this is not a case where no sanction

could be imposed. She made a distinction between dishonesty which occurs in a clinical

setting and that which, as in your own case, occurs out-with such a setting. Ms Cooper

made reference to the evidence given about your character by both the general

manager and managing director of Care at Home (Wales) Ltd who have had two years

to assess your character in full knowledge of the allegations against you. You had, she

said, impressed them enough for them to offer you the role of trainer.

Ms Cooper submitted that this is not a case which relates to the safety of patients. It

relates to the public interest and what a member of the public, fully informed of the facts

of your case, would consider to be an appropriate outcome.

Regarding your dishonesty, Ms Cooper submitted that all of the NMC charges relate to

the same subject and that you had undergone a sea change within the last two years.

She stated that you now recognise your behaviour was wrong and that you want to

change. You have spent a lot of time and money getting help and have managed to

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take remedial steps which include attendance on a course and your daily one hour

reflection.

Ms Cooper submitted that it is always very difficult to prove that dishonesty will not be

repeated. You have said that you will not do it again and the panel has evidence that

you have behaved with integrity and honesty during the last two years in your health

care assistant/trainer roles. Your current employers are satisfied as to your honesty and

consider that you are an asset to the company.

Ms Cooper reminded the panel that dishonesty does not automatically lead to erasure

and asked the panel to consider what more you could have done. You have, she stated,

done an overwhelming amount to remediate the dishonest behaviour and you realise

the impact that such behaviour has on public confidence in the profession.

She submitted that a suspension order would have a serious financial impact on you

and your family and would mark the seriousness of the misconduct found. Ms Cooper

concluded by submitting that a striking off order would be disproportionate in all the

circumstances.

Panel decision on sanction

The panel first considered the aggravating and mitigating factors in this case. The

aggravating factors include the repeated nature of your dishonesty which spanned a

period of over a year and was perpetrated against not only two employers but also the

NMC as your regulatory body. This behaviour, on your own evidence, appeared to be

an aspect of your personality which has deep roots in your past. The panel considered

that you have demonstrated only limited insight into how your behaviour impacts on the

public interest.

In mitigation the panel noted that you have fully engaged with these proceedings and

have expressed remorse for your conduct. You have admitted both facts and

impairment. The panel acknowledged that there has been no repetition of the behaviour

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within the last two years and that you are well-respected by colleagues in your current

role as a health care assistant/trainer. The panel accepted that you told your current

employer of both your past convictions and the investigation in New Zealand. The panel

took into account that you self-referred to the NMC after the New Zealand case had

been determined. The panel recognised and gave weight to the oral testimony of your

current line manager, Mr 1, and the written testimonials from Mr 1 and the managing

director of the company. Mr 1 provided credible testimonial evidence as to your probity

and performance in your current role. The panel noted that he had no reason to doubt

your honesty.

The panel took into account your personal background which you say provided a reason

for your dishonest behaviour.

The panel first considered taking no action. The panel decided that this would be wholly

inappropriate. The nature of your misconduct demands a sanction. Action is required to

protect the public interest, secure public trust and confidence in the profession and to

declare and uphold proper standards of conduct and behaviour.

The panel next considered imposing a caution order. The panel considered that a

caution order would not restrict your ability to practise and that it would be insufficient to

protect the public interest. Furthermore the misconduct found proved was not at the

lower end of the spectrum.

The panel next considered whether a conditions of practice order should be imposed.

This, the panel noted, was not a case that went to your clinical practice; your knowledge

and skill have never been impugned. Instead this is a case which concerns repeated

dishonesty perpetrated against two employers and your regulatory body. The panel

considered that there was no condition which could manage the risk of repetition of your

dishonest behaviour and came to the conclusion that workable conditions of practice

could not be formulated in this case.

The panel next considered a suspension order. In terms of the seriousness of the case

the panel observed that this was a case that was serious enough to justify at least

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temporary removal from the register and that such a removal would prevent your

dishonest behaviour from resurfacing in a clinical environment.

The panel did not consider that your misconduct was a single isolated act. It was

repeated and prolonged dishonesty perpetrated against two employers and your

regulatory body which related to failing to disclose previous convictions and the fact that

your fitness to practise was under investigation in New Zealand for having an

inappropriate relationship with a patient in your care.

The panel noted that there was evidence of harmful deep-seated attitudinal problems.

By your own admission, your dishonest conduct was ingrained. The panel took into

account the steps that you have taken to remedy your attitudinal problems but could not

be satisfied that you have remedied them to the extent that you are not liable to act

dishonestly in the future.

As noted above the panel considered that you have some limited insight. The panel

took the view that the distinction drawn by Ms Cooper between dishonesty which takes

place in a clinical environment and dishonesty that is unrelated to that environment is an

artificial distinction, particularly where the dishonesty relates to obtaining employment

as a registered nurse. When applying for your current role you clearly did, as Mr 1 said

in oral evidence, declare your convictions to which the panel attached appropriate

weight.

The panel next considered whether a suspension order would be sufficient to maintain

public confidence in the nursing profession and to uphold and declare proper standards

of conduct and behaviour. The panel viewed your behaviour, perpetrated against two

employers and the NMC as your regulatory body for a period in excess of a year, as

very serious and persistent. Your dishonesty was perpetrated in circumstances where

you were motivated to gain employment and had the effect of subverting the NMC’s role

in determining who is a fit and proper person to be on the register and your employers’

ability to determine your suitability for employment.

The panel concluded that your conduct was fundamentally incompatible with remaining

on the register and that a period of suspension would be insufficient to maintain public

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trust and confidence in the profession, and the NMC as a regulatory body. It concluded

that a striking off order was the only sanction which was appropriate, proportionate and

sufficient.

You will be notified of the panel’s decision in writing. The striking off order will come into

effect 28 days after the service of the notification of the panel’s decision upon you. If

you appeal the panel’s decision, the Order will not take effect until the appeal has been

concluded.

That concludes this determination.

Determination on interim order: Ms Pande made an application under Article 31 of the Fitness to Practise Rules for an

interim suspension order for 18 months to cover the 28 day appeal period and/or the

time needed to conclude an appeal, if one were lodged, on the grounds of public

protection and being otherwise in the public interest. She submitted that not to make a

suspension order would be inconsistent with the panel’s previous decision on sanction.

Ms Cooper, on your behalf, made no submissions.

The panel has considered the application carefully, bearing in mind its findings at the

impairment and sanction stages. The panel accepted the advice of the legal assessor.

The panel considered that public confidence in the profession would be undermined if

you were allowed to practise in the period until the sanction takes effect.

The panel took the view that it is necessary for the protection of the public and

otherwise in the public interest to impose an interim suspension order and not to do so

would be incompatible with the panel’s earlier findings and with the substantive sanction

that it has imposed.

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The panel determined that an interim suspension order was the appropriate for the

reasons given in the substantive decision. The order will be for a period of 18 months

and will take effect immediately.

This decision will be confirmed to you in writing.

That concludes this determination.