Conduct and Competence Committee Substantive …...Conduct and Competence Committee Substantive...

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Transcript of Conduct and Competence Committee Substantive …...Conduct and Competence Committee Substantive...

  • Conduct and Competence Committee Substantive Hearing

    Dates: 18 – 19 – 20 January 2016 Resuming from: 9-12 June 2015, 23-26 June 2015, and 7-15 October 2015

    Nursing and Midwifery Council, 61 Aldwych, London, WC2B 4AE Name of Registrant Nurse: Mark Beverly Amavih-Mensah NMC PIN: 07H0352E Part(s) of the register: Registered Nurse – sub part 1

    Mental Health (November 2007) Area of Registered Address: England Type of Case: Misconduct Panel Members: John Matharu (Chair/Lay member) Cynthia Mendelsohn (Lay member) Mary McCartney (Registrant member) Legal Assessor: Robin Hay Panel Secretary: Aneliya Kolarova (9-12 June 2015, 23-26 June,

    7-13 October 2015)

    Josh Dutton (14-15 October 2015)

    Bianca M. Mancini (18 – 19 – 20 January 2016)

    Registrant: Present and represented by Mr Mukhtiar Singh (9-12 June 2015 and 23-26 June 2015)

    Present and not represented

    (7-15 October 2015)

    Present and not represented

    (18 – 19 – 20 January 2016)

  • Nursing and Midwifery Council: Represented by James Edenborough (previously John Dowlman), Case Presenter

    instructed by NMC Regulatory Legal Team

    Charges found proved 1, 2, 3, 4, 5, 6, 9, 10.2, 10.3, 11, 12 Charges found not proved 10.1 No case to answer 7 and 8 Fitness to Practise: Impaired Sanction: Striking off order Interim order: Interim suspension order – 18 months

  • Charges That you, a Registered Nurse:

    1. In or around October 2011, failed to disclose to Central North West London NHS

    Foundation Trust that you had been dismissed by your previous employer South

    Essex Partnerships NHS Foundation Trust (SEPT):

    1.1. In your NHS Application form for employment as a Band 6 Community Mental

    Health Nurse in the Community Recovery Team in Brent CMHT;

    1.2. In the Confidential Form A dated 6th November 2011.

    2. That your actions at 1.1 and/ or 1.2 were dishonest in that you knowingly

    misrepresented the truth in relation to being dismissed by SEPT.

    3. In or around June 2014, failed to disclose to the Sugarman Mind Agency that you

    were:

    3.1. the subject of NMC proceedings; and/ or

    3.2. That you had been dismissed by your previous employer, SEPT; and/ or

    3.3. That you had been previously dismissed by Central North West London NHS

    Foundation Trust

    4. That your actions at charge 3 were dishonest in that you knowingly misrepresented

    the truth in each instance so as to conceal information from potential employers.

    5. In or around August 2014, failed to disclose to Central North West London NHS

    Foundation that you were:

    5.1. the subject of NMC proceedings; and/ or

    5.2. That you had been dismissed by your previous employer, SEPT; and/ or

    5.3. That you had been previously dismissed by Central North West London NHS

    Foundation Trust

    6. That your actions at charge 5 were dishonest in that you knowingly misrepresented

    the truth in each instance so as to conceal information from your potential employer.

  • 7. On 8 October 2014 sent an email to Ms 6 purporting to forward details of the alleged

    disclosure on 7 August 2014 of NMC proceedings and your previous dismissals to

    the Sugarman Mind Agency:

    7.1. knowing that no such email/ disclosure had been sent to the agency on 7 August

    or at any other time; and/ or

    7.2. knowing that you had not made the disclosures in relation to prior dismissals

    and NMC involvement.

    8. That your actions at charge 7 were dishonest, in that you knowingly misrepresented

    that you had disclosed your dismissals and NMC proceedings, as you were seeking

    to conceal your actions at one or more of charges 4, 5, 6, and 7.

    9. Between 17 July 2013 and 2 December 2014, failed to disclose to Westmeria

    Recruitment Ltd that you were:

    9.1 the subject of NMC proceedings; and/or

    9.2 That you had been dismissed by your previous employer, SEPT; and/or

    9.3 That you had been previously dismissed by Central North West London NHS

    Foundation Trust

    10. Between 17 July 2013 and 26 July 2013 failed to disclose to Hammersmith and

    Fulham assessment team West London that you were:

    10.1 the subject of NMC proceedings; and/or

    10.2 That you had been dismissed by your previous employer, SEPT; and/or

    10.3 That you had been previously dismissed by Central North West London

    NHS Foundation Trust

    11. Between 14 October 2014 and 13 November 2014 failed to disclose to Cheam

    Recovery and Support Team that you were:

    11.1 the subject of NMC proceedings; and/or

    11.2 That you had been dismissed by your previous employer, SEPT; and/or

    11.3 That you had been previously dismissed by Central North West London

    NHS Foundation Trust

  • 12. That your actions at charges 9 and/or 10 and/or 11 were dishonest in that you

    knowingly misrepresented the truth in each instance so as to conceal information

    from potential employers.

    And in light of the above your fitness to practise is impaired by reason of your

    misconduct.

  • Background Mr Amavih-Mensah,

    You were entered on the register as a mental health nurse in the United Kingdom (UK)

    in November 2007. You had worked in various roles, including a nursing role at the

    Bedfordshire and Luton Partnership Trust, which subsequently became known as the

    South Essex Partnership Trust (“SEPT”). You were dismissed from that position on 1

    July 2010. All allegations stem from that incident.

    In October 2011 you were interviewed for a role at the Central and North West London

    NHS Foundation Trust (“CNWL”) as a Band 6 psychiatric nurse in the Brent Recovery

    Team. It is alleged that in your application form and in the Confidential Form A you

    failed to disclose that you had been dismissed by SEPT for gross misconduct. It is

    alleged that in your application form, you simply stated ‘contract ended’ with respect to

    leaving your employment at SEPT and that in Confidential Form A, you left blank the

    answer section to the question whether you had ever been dismissed for misconduct.

    In April 2012 you informed your line manager Ms 1 that you had been referred to the

    NMC by your previous employer SEPT.

    As a consequence of these matters CNWL instituted disciplinary proceedings as a

    result of which, on 9 October 2012, you were dismissed.

    You subsequently registered with employment agencies. In June 2014, you registered

    at the Sugarman Mind Agency (“Sugarman Agency”), another recruitment agency. It is

    alleged that you did not disclose your dismissals from the SEPT and from CNWL nor

    that you were subject to NMC proceedings. In the application form to the Sugarman

    Agency you answered in the negative the question whether you had ever been the

    subject of disciplinary action or undergoing disciplinary action. You were introduced by

    the Sugarman Agency to CNWL, for interview for a post with that Trust. You had been

    dismissed by CNWL in 2012, but CNWL were apparently unaware that they had

    previously dismissed you. It is alleged that you did not disclose to CNWL, at interview or

  • otherwise, that you were subject to NMC proceedings and that you had been dismissed

    by SEPT and also by CNWL itself.

    Between July 2013 and December 2014, you were registered with Westmeria

    Recruitment Limited. It is alleged that when completing the Westmeria application form,

    you failed to disclose that you were subject to NMC proceedings and you signed a

    declaration to that effect. Also, you allegedly failed to disclose that you had been

    dismissed by SEPT and by CNWL. In July 2013 you were introduced by Westmeria to

    Hammersmith and Fulham and you failed to disclose to them these matters. In October

    2014 you were introduced by Westmeria to Cheam Recovery & Support Team

    (“Cheam”) and again you failed to disclose these matters.

    It is alleged that in failing to disclose these matters to the various Trusts and agencies

    you acted dishonestly.

  • Preliminary Matters Applications under Rule 31

    Mr Dowlman made an application that Mr 5 should give his evidence by telephone or in

    the alternative that his witness statement should be read into the record.

    Mr Dowlman informed the panel that Mr 5 had forgotten about the hearing and had

    booked a holiday beginning 12 May 2015. He would therefore be unavailable between

    14:00 and his return on 23 June 2015. He would however be available to give evidence

    today by telephone.

    It was common ground that Mr 5’s evidence is crucially relevant to issues of fact and

    also to dishonesty.

    Mr Singh, on your behalf opposed the application as fairness would require that the

    witness be physically present to give his evidence in order that his demeanour could be

    assessed by the panel and that he would be under no pressures of time.

    The panel accepted the advice of the legal assessor.

    The panel had in mind that Mr 5’s evidence was relevant to issues of fact and to the

    allegations of dishonesty. It concluded that the interests of justice would best be served

    if his evidence were to be given in person on 23 June 2015.

    The panel therefore refused both limbs of Mr Dowlman’s application.

    In the event the NMC evidence, apart from that of Mr 5, was completed on day 3 of the

    hearing, 21 June 2015, the panel indicated that it would sit again on 23 June 2015 to

    hear Mr 5’s evidence. Mr Singh submitted that in effect the NMC was applying for an

    adjournment until 23 June 2015. He opposed this and submitted that the hearing should

    continue without a break and that in the absence of Mr 5 the NMC should close its case.

  • He said that an adjournment would result in injustice to you as it would prolong the

    proceedings and cause you stress and further costs of representation.

    The panel concluded that this was not an application to adjourn as the case was due to

    continue on 23 June 2015. The panel had previously rejected the NMC application

    under Rule 31 as Mr 5 was a crucial witness and it was known that he was able to

    attend on 23 June 2015. Even if this were an application to adjourn the matters

    advanced by Mr Singh would not amount to injustice as the delay would not affect the

    fairness of proceedings.

    The panel therefore refused Mr Singh’s application and decided to resume on 23 June

    2015.

  • Half-time submissions on no case to answer under Rule 24(7) of the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (“the Rules”)

    At the close of the NMC’s case, Mr Singh, on your behalf, submitted that Charges 4, 5,

    6, 7 and 8 were not well-founded.

    Mr Singh informed the panel that it needed to consider whether there is sufficient

    evidence adduced by the NMC in relation to the above charges which would require a

    response from you. Mr Singh submitted that the threshold in this regard is “very high”.

    Mr Singh invited the panel to look closely at the allegations alone and not to consider

    other matters or thoughts which may arise about whether something should or should

    not be done. Mr Singh submitted that the question for the panel is: “Has the NMC

    produced the evidence which is required?”

    Mr Singh submitted that the panel should first consider Charge 7, in its entirety. He said

    that the charge relates to an email dated 8 October 2014 sent to Ms 6 disclosing an

    email which was purportedly sent on 7 August 2014 to Mr 5. Mr Singh submitted that

    the panel has not heard evidence in relation to your knowledge and that it is implicit

    from the charge that the allegation is that you did not send the email on 7 August 2014.

    The evidence adduced by the NMC in relation to this charge is from Mr 5, who stated

    that he did not receive the 7 August email. Mr Singh submitted that the panel may

    accept this, but that Mr 5 agreed that he is unable to say whether you had sent the

    email or not. Mr Singh invited the panel to consider the times when an intended

    recipient does not receive post, text messages or emails. He submitted that when these

    incidents occur the intended recipient does not automatically accuse the sender of lying.

    The intended recipient, in this case Mr 5, is unable to say whether it was in fact ever

    sent. Mr Singh submitted that evidence could only come from the registrant’s

    admissions or direct evidence from a phone or email account. Mr Singh submitted that

    all the panel has is a theory rather than evidence.

    Mr Singh submitted that it must follow that Charge 8 could only be proved if Charge 7

    were proved. He submitted that this is a serious allegation that you have in some way

  • invented an email. Mr Singh further submitted that a mere accusation does not mean

    that there is evidence that requires a response. Accordingly, he contended that there is

    insufficient evidence to satisfy the panel that Charges 7 and 8 could be proved.

    Mr Singh submitted that Charge 4 is inherently linked to Charge 3. He conceded that

    Charge 3 did require a response from you, but that if you did not send the email of 7

    August 2014, the failures in charge 3 cannot be dishonest as you had made the relevant

    disclosures prior to the commencement of your employment at the Trust.

    In regard to Charges 5 and 6 Mr Singh’s submission was that they relate to disclosures

    to CNWL. Mr Singh’s first point was that the duty of disclosure to the Trust was that of

    the Sugarman Agency as it was required to carry out the checks as opposed to its being

    the registrant’s duty. His second point was that if the panel finds that you had sent the 7

    August email to the Agency, there is nothing to suggest that you did not make the

    disclosures. He submitted that it follows in terms of Charge 6 that you had complied with

    your obligations.

    In conclusion, Mr Singh submitted that these allegations hinge on the email of 7 August

    2014, and there being no evidence of it not being sent, these allegations are not well

    founded.

    Mr Dowlman agreed with Mr Singh’s submission that, at this stage, the test relating to

    this application is very high for a registrant and that the submission fails if there is any

    cogent evidence.

    Mr Dowlman submitted that charges 7 and 8 do depend on whether the email of 7

    August 2014 was sent by you. He observed that the panel has not heard evidence

    about your knowledge or your state of mind and that this is something for the panel to

    assess, weighing up all known factors. Mr Dowlman asked the question “Is it therefore

    just a mere accusation?” He submitted that the panel has seen the email sent on 8

    October 2014 and therefore the allegations feature firmly in the realm of fact. He further

    submitted that your case is that within communications, “things sometimes get lost”. He

    contended that this does not apply to this case as the email of 8 October 2014 is an

  • assertion that the email of 7 August 2014 was sent. If this is not true, it must have been

    dishonest and fraudulent, and that the 8 October 2014 email was a deliberate attempt to

    deceive in the light of what was contained within it.

    Mr Dowlman submitted that it was not irrelevant that you had failed to be open and

    honest in completing your application form to the Sugarman Agency.

    With regard to Charge 5, and therefore to Charge 6, Mr Dowlman did not dispute that

    the Agency had a duty to carry out the necessary checks on your application. However,

    the hearing was not convened to decide whether the Sugarman Agency has fulfilled its

    duty. It is the NMC’s case that as set out in the Nursing and Midwifery Council’s The

    Code: Standards of conduct, performance and ethics for nurse and midwives (“the

    Code”), you had a duty to be open and honest, a fundamental tenet of the profession.

    Mr Dowlman referred the panel to the evidence of Ms 3 who was able to speak on

    behalf of CNWL. She stated, “We expect all staff to be open and honest…I think there is

    a duty on the registrant to disclose.”

    Mr Dowlman submitted that the evidence before the panel clearly establishes the initial

    prima facie case which is required at this stage of proceedings.

    The panel accepted the advice of the legal assessor.

    The panel first considered Charge 4. In June 2014 your Agency application process was

    proceeding. As at this date there is no evidence to suggest that you had disclosed the

    relevant matters to the Sugarman Agency prior to your purported email of 7 August

    2014. By not disclosing this matter, contrary to the Code, there is a prima facie case in

    regard to the allegation of dishonesty. The email does not relate to this allegation and

    the application form alone is relevant. In regard to the objective test of whether

    according to the ordinary standards of reasonable and honest nurses what was done by

    you was dishonest, the panel determined that this could be proved. The panel also

    considered the subjective test in whether you yourself must have known that what you

    were doing was, by those standards, dishonest. Again, considering the evidence before

  • it, the panel considered this too could be proved. Accordingly, the panel found there to

    be a case to answer in relation to Charge 4.

    In relation to Charges 5 and 6, the panel considered paragraph 51 of the Code which

    states:

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

    question.”

    The panel interpreted the “employer” referred to in the Code to apply not only to the

    Sugarman Agency, but also to the Trust. In her evidence, Ms 3 said that CNWL

    considered you to be under a professional duty to disclose to it the relevant matters.

    The panel therefore determined that the evidence is such that there is a case to answer

    with regard to Charge 5.

    In regard to the objective test of whether according to the ordinary standards of

    reasonable and honest nurses what was done by you was dishonest, the panel

    determined that this could be proved. The panel also considered the subjective test in

    whether you yourself must have known that what you were doing was, by those

    standards, dishonest. Again, considering the evidence before it, the panel considered

    this too could be proved. Accordingly, the panel found there to be a case to answer in

    relation to Charge 6.

    With regard to Charges 7 and 8 there was adduced in evidence the screenshot of your

    yahoo email account showing that an email entitled “confirmation of contract and

    disclosure” was sent to Mr 5 on 7 August 2014. The only other evidence before the

    panel is that of Mr 5 in which he stated that he had not received the 7 August 2014

    email. Mr 5 was unable to make any positive comment about the screenshot. The panel

    found the evidence about these charges to be tenuous and inherently weak. The panel

    determined that although there was evidence from Mr 5 that the email was not received

    this was insufficient to prove that it was never sent. Accordingly, the panel found there

    to be no case to answer in relation to Charge 7 and as a consequence to Charge 8.

  • Decision on facts

    In reaching its decision on the facts, the panel has taken into account the oral and

    written evidence adduced and the submissions made by Mr Dowlman, on behalf of the

    NMC, Mr Singh for the period during which he represented you and by you. Mr Singh

    represented you between 9 June 2015 and 11 June 2015, and 23 June 2015 and 26

    June 2015. At the resumed hearing on 7 October 2015, at which time you were still

    being cross-examined, you were unrepresented.

    The panel heard oral evidence from the following NMC witnesses:

    • Ms 1, CNWL Investigation Officer

    • Mr 2, Recruitment and Employee Services Adviser at CNWL

    • Ms 3, Senior Human Resources Business Partner at CNWL

    • Ms 4, Head of Governance at Westmeria Agency

    • Mr 5, Recruitment Consultant at the Sugarman Agency

    The above job descriptions were relevant at the time of the alleged incidents.

    There were before the panel the agreed witness statements from:

    • Mr 7, Team Manager at Cheam

    • Ms 8, NMC case officer

    • Ms 9, Senior Nurse practitioner at Hammersmith and Fulham

    The panel found all the NMC witnesses to be credible, honest and measured. Their

    evidence to be generally clear, reliable and consistent with contemporaneous evidence.

    They did not embellish their evidence to your disadvantage.

    The panel found you to be a very articulate witness. However, at times, it found your

    evidence evasive. When recounting incidents and faced with documentary evidence,

    your recollections appeared selective. It also found that on occasions, your evidence did

    not fully address the questions put to you. It therefore found significant parts of your

  • evidence unreliable as you did not always provide straight answers to questions asked

    by the NMC or by the panel and there were inconsistencies in your answers. Further, in

    your evidence you disputed paragraph 4 of Mr 7’s written statement, which had

    previously been agreed between the parties and as a result of which he was not called

    to give evidence. The panel therefore determined that when inconsistencies of evidence

    occurred, it preferred the evidence of the NMC witnesses to yours.

    The panel accepted the advice of the legal assessor.

    The panel was made aware that the burden of proof rests on the NMC throughout, and

    that the standard of proof is the civil standard, namely the balance of probabilities. This

    means that a panel may find a fact proved if it is satisfied that it is more likely than not to

    have occurred.

    The panel considered each charge separately:

    Charge 1

    That you, a Registered Nurse:

    1. In or around October 2011, failed to disclose to Central North West London NHS

    Foundation Trust that you had been dismissed by your previous employer South

    Essex Partnerships NHS Foundation Trust (SEPT):

    1.1. In your NHS Application form for employment as a Band 6 Community Mental

    Health Nurse in the Community Recovery Team in Brent CMHT;

    FOUND PROVED

    When completing the NHS Application form for employment at CNWL, the reason you

    gave for leaving your employment with SEPT, was “contract ended”. You did not

    disclose that you had been dismissed by your previous employer SEPT.

    The form further provided that additional information regarding your employment history

    should be included. No such further information was included.

  • There was a declaration made by you at the back of this form. The declaration required

    you to confirm that the information provided by you was “true and complete” and that

    any omission, falsification or misrepresentation in the application form will be grounds

    for rejecting it or subsequent dismissal.

    In your evidence, you said that you believed that the phrase “contract ended” was a

    correct description but you agreed that it could have caused confusion. You further said

    that you were experiencing significant personal difficulties at the time of completing this

    form. The panel rejected this account as the form was otherwise fully and accurately

    completed save for your crucial failure to disclose your disciplinary issues.

    The panel concluded that as a registered nurse, you were under a duty to disclose on

    the application form the full reasons for the end of your employment at SEPT and your

    dismissal on the application form. The onus was on you to make the reasons clear. The

    panel was satisfied that you failed to disclose your dismissal and therefore found this

    charge proved.

    1.2. In the Confidential Form A dated 6th November 2011.

    FOUND PROVED Confidential Form A, dated 6 November 2011 was a separate document to your NHS

    Application form and was completed on a different date. Again you did not disclose

    reasons for leaving your previous employer SEPT. When completing Question 7 of the

    form: “Have you ever been dismissed by reason of misconduct from any employment,

    office or other position previously held by you”, you left the box un-ticked. Further, there

    was space underneath that question to provide any details of a dismissal.

    This document required you to sign a declaration about the truthfulness and

    completeness of the form and you have clearly signed your agreement to this. The

    panel therefore found this charge proved.

  • Charge 2 2. That your actions at 1.1 and/ or 1.2 were dishonest in that you knowingly

    misrepresented the truth in relation to being dismissed by SEPT.

    FOUND PROVED

    The panel applied the twofold test to the question of dishonesty. First whether,

    according to the ordinary standards of reasonable and honest nurses, your actions were

    dishonest. Second, if that was so, whether you must have realised that what you were

    doing was by those standards was dishonest.

    In his evidence Mr 2 said that there was a pre-employment meeting on 6 December

    2011 in order to gather information, for example of your eligibility to work in the UK.

    Your evidence was that in the course of the meeting you told him about your dismissal

    from SEPT. He said that at no time did you mention this. The panel preferred Mr 2’s

    evidence as such information would be regarded by him as significant.

    The panel also heard from Ms 1 about the importance of CNWL being aware of

    previous disciplinary matters. She was clear that the onus was on the registrant and that

    the words “contract ended” failed to tell the Trust what it needed to know.

    The panel determined that by the ordinary standards of reasonable and honest nurses

    your actions were dishonest. Objectively, it is dishonest for a person who has completed

    two separate forms on two separate occasions asking about previous disciplinary

    action, not to say so. Moreover you were experienced in completing application forms

    and you ought to have known that you should truthfully and accurately complete forms.

    The panel decided that as a registered nurse you would have been aware of the

    significance of the information you were withholding.

    In your evidence you said that you were experiencing personal difficulties at the time of

    completing these forms and as a consequence you made mistakes. The panel rejected

    this account as credible as both forms were otherwise complete and accurate and the

  • only omissions related to your dismissal from SEPT. Further, both forms were

    completed on separate dates and the omissions related to the same matter, namely

    your previous dismissal from SEPT. The panel was therefore satisfied that you failed to

    inform CNWL on two separate forms and signed them to confirm that the information

    was true and accurate. This was untrue. The panel is satisfied that you must have

    realised that what you were doing was dishonest. The panel therefore found this charge

    proved.

    Charge 3

    That you, a Registered Nurse:

    3 In or around June 2014, failed to disclose to the Sugarman Mind Agency that you

    were:

    3.1. the subject of NMC proceedings;

    FOUND PROVED

    The panel has already considered paragraph 51 of the Code which states:

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

    question.”

    As stated earlier in the course of this hearing, the panel has interpreted the “employer”

    referred to in the Code to apply not only to the Agency, but also to each “end user”

    Trust.

    In its letters dated 16 July 2013 and 16 September 2013 the NMC informed you of a

    fitness to practise referral in relation to these charges. The formal Notice of Referral to

    the Investigating Committee letter was sent to you on 27 November 2013. The panel

    has therefore determined that your duty to disclose to your employers that you were the

    subject of NMC proceedings arose on 27 November 2013. The panel had no doubt that

    in or around June 2014, you were aware that you were the subject of NMC proceedings.

  • On 2 June 2014 you submitted an application form to the Sugarman Agency. You did

    not state either on the form or the accompanying CV that you were the subject of NMC

    proceedings. The panel therefore found this charged proved.

    3.2. That you had been dismissed by your previous employer, SEPT;

    FOUND PROVED

    In your application form to the Sugarman Agency, dated 2 June 2014, a question asked:

    Have you ever been the subject of disciplinary action or undergoing disciplinary action?

    You ticked “No”.

    Your CV sent to the Sugarman Agency made no mention of your dismissal from SEPT.

    Further, you signed a declaration that the information provided was to the best of your

    knowledge, true and correct.

    Your e-mail to Mr 5, dated 7 August 2014 is of no relevance as this charge relates to

    June 2014.

    The panel was satisfied that there is no evidence that you made the necessary

    disclosures to the Sugarman Agency in June 2014. It therefore found this charge

    proved.

    3.3. That you had been previously dismissed by Central North West London NHS

    Foundation Trust

    FOUND PROVED

    In your application form to the Sugarman Agency, dated 2 June 2014, a question asked:

    Have you ever been the subject of disciplinary action or undergoing disciplinary action?

    You ticked “No”.

    You stated that you understood this question to mean “Are you currently undergoing

    disciplinary action?” and you therefore ticked “No”.

  • In his evidence, Mr 5 said that you did not tell him about the NMC investigation or about

    your dismissal from CNWL. The panel preferred his evidence to your evidence.

    Your CV sent to the Sugarman Agency made no mention of your reasons for leaving

    CNWL.

    Your e-mail to Mr 5, dated 7 August 2014 was of no relevance as the charge relates to

    June 2014.

    The panel was satisfied that there is no evidence that you made the necessary

    disclosures to the Sugarman Agency in June 2014. It therefore found this charge

    proved.

    4. That your actions at charge 3 were dishonest in that you knowingly

    misrepresented the truth in each instance so as to conceal information from

    potential employers.

    FOUND PROVED

    The panel applied the twofold test. It first determined whether by the ordinary standards

    of reasonable and honest nurses, your actions were dishonest. A nurse who does not

    disclose that he is subject to NMC proceedings and who, when asked whether he has

    ever been the subject of disciplinary action, answers in the negative by ticking the “no

    box”, is by these standards dishonest. The panel further considered that you were

    experienced in completing application forms and ought to have known that they should

    have to be fully and accurately completed.

    The panel next considered whether you must have known that what you were doing

    was, by those standards, dishonest.

    In your evidence you stated that you your reason for ticking “No” was because, as a

    non-native English speaker, you understood this to mean “Are you currently undergoing

    disciplinary action?” and that this was correct as you were not undergoing disciplinary

  • action at the time of completing the form. The panel found that your explanation lacked

    credibility. Although you asserted that you misunderstood the question you accepted

    that at no time did you seek clarification from the agency. Further, beneath the question,

    the form states, “If yes, please give details” followed by a blank space. The panel

    determined that had you wished to give a more detailed or qualified answer you could

    have done so there.

    In his evidence Mr 5 said that you did not tell him about the NMC investigation or about

    your dismissals from SEPT or CNWL. The panel preferred his evidence to yours.

    Further you purported to rely on the fact that you are not a native speaker of English.

    You acknowledged, however, that your educational studies from GCSE level through to

    your advanced degree (Masters) at University in England were all conducted in English.

    The panel found your use of English to be to a very high standard and that you were

    very articulate.

    The panel determined that the onus is on a registered nurse to disclose fitness to

    practise concerns to any potential employing agency. You said in evidence that you

    were well aware of the specific duty to make disclosures to employers under paragraph

    51 of the Code. The panel was satisfied that as a registered nurse you would have been

    aware of the significance of the information you were withholding, as this would be

    regarded as significant by the agency and of relevance to the Trust. The panel has

    therefore concluded that you must have realised that what you did was dishonest by the

    ordinary standards of reasonable and honest nurses and therefore found this charge

    proved.

    Charge 5

    5. In or around August 2014, failed to disclose to Central North West London NHS

    Foundation that you were:

    5.1 the subject of NMC proceedings;

    FOUND PROVED

  • The panel has already considered paragraph 51 of the Code which states:

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

    question.”

    The panel interpreted the “employer” referred to in the Code to apply not only to the

    Agency, but also to the Trust as “end user” to which you were introduced and which

    employed you. The panel was satisfied that CNWL had overall management

    responsibility for your day to day practice and instructions and were in a position to

    dismiss you. The panel therefore found that you had a duty to make disclosures directly

    to CNWL when you were working there for the second time in August 2014.

    You had an opportunity to disclose the NMC proceedings during an interview with

    CNWL on 5 August 2014.

    You have not disputed that no disclosure was made to CNWL about your NMC

    proceedings or previous dismissals. In your evidence you said that you had attempted

    to make a disclosure to the Sugarman Agency by email of 7 August 2014, but that you

    were not under any duty to inform CNWL as ‘end user’. The panel found that you had

    an opportunity to disclose that information to CNWL at this stage. It determined that you

    had a duty to disclose that information to CNWL, in addition to disclosing this to the

    Sugarman Agency. The panel therefore found this charge proved.

    5.2 That you had been dismissed by your previous employer, SEPT;

    FOUND PROVED

    The panel was satisfied that CNWL was your employer. The panel found that you

    therefore had a duty to disclose your previous dismissal from SEPT to CNWL in addition

    to disclosing it to the Westmeria Agency. The panel was satisfied that no such

    disclosure to CNWL was made in relation to your previous dismissals. Further, you have

    admitted that no such disclosure has occurred with CNWL. The panel therefore found

    this charge proved.

  • 5.3 That you had been previously dismissed by Central North West

    London NHS Foundation Trust

    FOUND PROVED

    The panel found that that you had a duty to disclose your previous dismissal from SEPT

    to CNWL. You have admitted that no such disclosure was made. The panel therefore

    found this charged proved.

    6 That your actions at charge 5 were dishonest in that you knowingly misrepresented

    the truth in each instance so as to conceal information from your potential employer.

    FOUND PROVED

    When applying the objective test for dishonesty, the panel determined that that as set

    out in the Nursing and Midwifery Council’s The Code: Standards of conduct,

    performance and ethics for nurse and midwives (“the Code”), as a registered nurse you

    had a duty to be open and honest, a fundamental tenet of the profession.

    In this context the panel found the evidence of Ms 3 to be significant. She stated, “We

    expect all staff to be open and honest…I think there is a duty on the registrant to

    disclose.”

    When applying the subjective test for dishonesty, the panel had regard to your

    evidence. You told the panel that having made a disclosure to the Sugarman Agency by

    email of 7 August 2014, you were not under any duty to inform the CNWL as ‘end user’.

    The panel did not accept this proposition; it has found that the duty is to disclose to both

    the agency and the Trust.

    In your email dated 7 August 2014 to Sugarman Agency you stated: “… There was no

    opportunity to discuss the reason for leaving that contract-which ended by way of

    dismissal, culminating in a referral to the NMC…However I feel it is particularly

    important to provide a written disclosure of the same…”

  • In your evidence you said that you were well aware of the specific duty to make

    disclosures to agencies as employers under paragraph 51 of the Code. The panel is

    satisfied that you had an opportunity to disclose this information at your interview with

    the Trust.

    The panel determined that the onus is on a registered nurse to disclose fitness to

    practise concerns to his employer. The panel was satisfied that you were aware of the

    significance of the information you were withholding from CNWL. The panel therefore

    determined that this was a selective omission. Taking all of the above into account, the

    panel has concluded that you must have realised that what you did was, by the

    objective standard, dishonest. The panel therefore found this charge proved.

    Charge 9 That you whilst a registered nurse

    9. Between 17 July 2013 and 2 December 2014, failed to disclose to Westmeria

    Recruitment Ltd that you were:

    9.1 the subject of NMC proceedings;

    FOUND PROVED

    In a letter dated 17 July 2013 the NMC notified you that your fitness to practise had

    been called into question. The panel however did not consider that this letter gave rise

    to you being the subject to NMC proceedings.

    The panel determined that you became subject of the NMC proceedings when the NMC

    notified you of this by a formal Notice of Referral on 27 November 2013. You have

    accepted that you became the subject of NMC proceedings on this date.

    You completed the Westmeria Agency application form on 5 June 2013. You were not

    at that stage subject to NMC proceedings and you were therefore not under an

    obligation to disclose this information on your application form.

  • The duty arose when you were notified of the referral by letter dated 27 November

    2013. The duty to disclose continued thereafter during the period 27 November 2013 to

    2 December 2014. The panel therefore found this charge proved in that between 27

    November 2013 and 2 December 2014 you failed to make the necessary disclosure.

    9.2 That you had been dismissed by your previous employer, SEPT;

    FOUND PROVED

    In your Westmeria application form dated 5 June 2014 there was a question “Have you

    ever been the subject of a professional misconduct proceeding, suspension from an

    employer or pending an enquiry either in the UK or abroad”. In response you ticked

    “No”. Further the application form required you to provide 10 years of work history and

    reasons for the gaps in your employment. You stated: “Please see CV attached”. Your

    attached CV did not refer to your dismissal from SEPT.

    Furthermore you signed the declaration at the back of the form: “I declare that the

    information given is true and is not in any way intended to mislead. I am not aware of

    any condition medical or otherwise, that would affect or limit my performance or

    employment…I agree that I have given correct information and have not omitted

    relevant details…” This was clearly untrue. The panel therefore found this charge

    proved.

    9.3 That you had been previously dismissed by Central North West London NHS

    Foundation Trust

    FOUND PROVED

    In your application form you responded to the question: “Have you ever been the

    subject of a professional misconduct proceeding, suspension from an employer or

    pending an enquiry either in the UK or abroad”, by ticking “No”. Further the application

    form required you to provide 10 years of work history and reasons for the gaps in your

    employment. You stated “Please see CV attached”. Your attached CV did not refer to

  • your previous dismissal from CNWL. Indeed no reasons were given for your change of

    employment.

    Furthermore you signed the declaration at the back of the form: “I declare that the

    information given is true and is not in any way intended to mislead. I am not aware of

    any condition medical or otherwise, that would affect or limit my performance or

    employment…I agree that I have given correct information and have not omitted

    relevant details…” This was clearly untrue. The panel therefore found this charge

    proved.

    Charge 10

    That you whilst a registered nurse

    10. Between 17 July 2013 and 26 July 2013 failed to disclose to Hammersmith and

    Fulham assessment team West London that you were:

    10.1 the subject of NMC proceedings;

    FOUND NOT PROVED

    The panel found that you became the subject of NMC proceedings on 27 November

    2013. There was no evidence before the panel that you were aware that you were the

    subject of NMC proceedings between 17 July 2013 and 26 July 2013. It therefore found

    this charge not proved.

    10.2 That you had been dismissed by your previous employer, SEPT;

    FOUND PROVED

    For the identical reasons given under Charge 5 above the panel was satisfied that

    Hammersmith and Fulham Assessment Team West London was your employer. The

    panel therefore found that you had a duty to make disclosures to the Trust about your

    dismissal from SEPT. Your CV supplied to the agency did not mention your previous

    dismissals.

  • It was your case that you did not believe that you had to make separate disclosure to

    the Trust as you regarded Westmeria Agency as “your employer”. You said that you

    believed that you had made disclosure to Westmeria but by mistake had misspelt the e-

    mail address. The panel has therefore concluded that no disclosure was made to

    Westmeria Agency and that in any event the agency could not have passed the

    information to the Trust.

    The panel was therefore satisfied that no disclosure has been made to this Trust and

    therefore found this charge proved.

    10.3 That you had been previously dismissed by Central North West London NHS

    Foundation Trust

    FOUND PROVED

    For the identical reasons given under Charge 5 above the panel was satisfied that

    Hammersmith and Fulham Assessment Team West London was your employer. The

    panel therefore found that you had a duty to make disclosures to the Trust about your

    dismissal from CNWL.

    The panel was satisfied that no disclosure has been made to this Trust and therefore

    found this charge proved.

    Charge 11 That you whilst a Registered Nurse

    11. Between 14 October 2014 and 13 November 2014 failed to disclose to Cheam

    Recovery and Support Team that you were:

    11.1 the subject of NMC proceedings;

    FOUND PROVED

    For the identical reasons given under Charge 5 above the panel was satisfied that

    Cheam Recovery and Support Team was your employer. The panel therefore found that

    you had a duty to make disclosures to Cheam about your NMC proceedings. Your CV

  • supplied to the Westmeria Agency did not mention that you were subject to NMC

    proceedings.

    The panel has already found that you became subject of NMC proceedings on 27

    November 2013.

    In his witness statement, read to the panel, Mr 7 said that you told him that you were to

    meet with the NMC and you “…said something like it was nothing to worry about and

    concerned an issue from the past”.

    You had agreed the content of Mr 7’s evidence, but in your evidence you disputed that

    part of his statement and you said that you had told him of the NMC proceedings. Mr 7’s

    evidence, having been agreed and read to the panel, cannot now be tested before the

    panel.

    The panel did not accept your account of this conversation and found that what you said

    to Mr 7 was inaccurate, incomplete and did not amount to disclosure that you were

    subject to NMC proceedings.

    The panel was satisfied that no disclosure had been made to this Trust and therefore

    found this charge proved

    11.2 That you had been dismissed by your previous employer, SEPT;

    FOUND PROVED

    For the identical reasons given under Charge 5 above the panel was satisfied that

    Cheam Recovery and Support Team was your employer. The panel therefore found that

    you had a duty to make disclosures to Cheam about your dismissal from SEPT. Your

    CV supplied to the agency did not mention your dismissal from SEPT.

    The panel was satisfied that no disclosure has been made to Cheam about your

    previous dismissal from SEPT and therefore found this charge proved

  • 11.3 That you had been previously dismissed by Central North West London

    NHS Foundation Trust

    FOUND PROVED

    For the identical reasons given under Charge 5 above the panel was satisfied that

    Cheam Recovery and Support Team was your employer. The panel therefore found that

    you had a duty to make disclosures to Cheam about your dismissal from CNWL. Your

    CV supplied to the agency did not mention your dismissal from CNWL.

    The panel was satisfied that no disclosure has been made to Cheam about your

    previous dismissal from CNWL and therefore found this charge proved.

    Charge 12

    12. That your actions at charges 9 and/or 10 and/or 11 were dishonest in that you

    knowingly misrepresented the truth in each instance so as to conceal

    information from potential employers.

    FOUND PROVED

    When considering whether your actions in relation to charges 9, 10 and 11 were

    dishonest, the panel has applied the twofold test to each charge.

    When applying the objective test for dishonesty, the panel determined that as set out in

    the Nursing and Midwifery Council’s The Code: Standards of conduct, performance and

    ethics for nurses and midwives (“the Code”), as a registered nurse you had a duty to be

    open and honest, a fundamental tenet of the profession.

    In regard to Charge 9

    The ten year history was a part of the application form and is already present in the

    application form that the registrant returned to the Agency. You had dealt with that form

  • by writing on it “Please see CV attached”. The panel found that you did not return the

    form fully completed.

    You had not produced any email showing if or when the completed ten year history form

    was sent to the agency.

    You stated that you sent to Westmeria Agency a further fully completed ten year history

    form disclosing details of you two dismissals. You produced this form in your evidence.

    In her evidence Ms 4 said that if the agency had received this version of the ten year

    work history produced, then: “Massive alarm bells would ring that somebody had been

    terminated twice, or dismissed twice, actually. Because it isn’t that common – it is quite

    a rarity for nurses to apply to us who have actually been dismissed”. She said that she

    had previously searched your file at the agency and could not see a completed ten year

    history anywhere. The file itself was checked during the hearing by both counsel and it

    was agreed that it does not contain a completed ten year history form.

    Ms 4 further said that if the agency did become aware that a candidate was previously

    dismissed, it would act on that information by seeking references, obtaining a statement

    from the candidate and informing the end-user Trust in writing.

    At the time of completing your Westmeria Application form on 5 June 2013, you were

    aware that you had been dismissed from two employers: SEPT and CNWL. In addition

    to the application form, your CV which the agency held on file made no mention of these

    matters nor of your NMC proceedings.

    You told the panel that you believed that you had made disclosure to Westmeria

    Agency by sending your completed ten year history by email, but by a mistake had

    misspelled the correct e-mail address. The panel has seen a chain of five separate e-

    mails between Westmeria Agency and you, which had been sent to the correct email

    address.

  • You completed the Westmeria application form thoroughly and accurately, save for the

    questions about any previous misconduct findings, and your omissions in relation to

    your disclosure of 10 years of work history. In addition, you signed a Declaration of

    Truth at the back of the form. The panel determined that the onus is on a registered

    nurse to disclose fitness to practise concerns to his employers.

    The panel found your actions to be dishonest.

    In regard to Charge 10

    It was your case that you did not believe that you had to make separate disclosure to

    the Hammersmith and Fulham and Cheam as you believed that you only had to make

    disclosure to Westmeria as “your employer”. The panel has however concluded that no

    disclosure was made to Westmeria Agency in any case and the agency could not have

    told the Trust. Further, your duty to disclose your previous dismissals to the Trust was in

    addition to that duty towards Westmeria agency.

    You gave evidence that you were well aware of the specific duty to make disclosures to

    agencies as employers under paragraph 51 of the Code.

    The panel found your actions to be dishonest.

    In regard to Charge 11

    For the same reasons as in regard to Charge 10. The panel found your actions to be

    dishonest.

    The panel determined that the onus is on a registered nurse to disclose fitness to

    practise concerns to his employer. The panel was satisfied that you were aware of the

    significance of the information you were withholding from Westmeria, Hammersmith and

    Fulham and Cheam. The panel determined that these were deliberate omissions.

    Taking all of the above into account, the panel found your actions to be subjectively

  • dishonest. It has therefore found dishonesty proved in relation to all three charges both

    individually and cumulatively.

    Application for an interim order The panel determined that it would not be possible to conclude the hearing today and

    that this hearing would be adjourned part-heard. The panel was aware that you are

    currently subject to an interim conditions of practice order and invited Mr Dowlman for

    submissions in relation to the suitability of such an order.

    Mr Dowlman invited the panel to change the current order to an interim suspension

    order on the grounds of the public interest to protect the reputation of the profession and

    to declare and uphold proper standards of conduct. Mr Dowlman submitted that the

    panel has found 10 charges proved, which included a number of acts of dishonesty. Mr

    Dowlman submitted that a conditions of practice order is no longer proportionate or

    appropriate.

    You accepted that an interim order is necessary in your case, but you opposed the

    necessity of an interim suspension order. You submitted that your clinical practice is not

    in question and that there are no public protection concerns. You submitted that the

    necessity for an order on the grounds of being in the public interest alone had not

    reached the high threshold required, and that you were working safely under the current

    order. You told the panel that an interim suspension order would affect you both

    financially and professionally as it would not allow you to continue to practise as a nurse

    and demonstrate your remediation.

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

    The panel considered that the current conditions of practice order was appropriate and

    proportionate, and satisfies the public protection concerns and public interest. The panel

    did not consider that its findings on facts had altered the circumstances of the case.

    Accordingly, the panel determined that it would not replace the interim conditions of

    practice order.

    That concludes this determination.

  • On resuming dates: 18 – 19 – 20 January 2016

    Decision and reasons on misconduct and impairment:

    Mr Amavih-Mensah,

    Having found charges 1, 2, 3, 4, 5, 6, 9, 10.2, 10.3, 11, and 12 proved, the panel then considered whether your actions amounted to misconduct and, if so, whether your

    fitness to practise is currently impaired by reason of that misconduct.

    The panel considered all the oral and documentary evidence adduced in this case. It

    also took into account the submissions of Mr Edenborough, on behalf of the NMC, and

    those made by you. It had particular regard to your evidence given at this second stage

    of the proceedings. The panel accepted the advice of the legal assessor.

    Mr Edenborough invited the panel to consider first the matter of misconduct. He

    submitted that a number of instances of dishonesty have been found against you, which

    indicated a pattern of behaviour. These involved six different occasions between 2011

    and 2014 when you failed to inform various employers of your previous dismissals and

    of the NMC proceedings. Mr Edenborough referred the panel to the case of Parkinson v

    Nursing and Midwifery Council [2010] EWHC 1898 (Admin) in which it was highlighted

    how dishonesty is always a serious matter. Mr Edenborough reminded the panel that it

    had found repeated instances of dishonesty relating to your applications for employment

    as a registered nurse. He referred the panel to the fourth bullet point in the preamble of

    the NMC The Code: standard of conduct, performance and ethics for nurses and

    midwives (the Code, 2008) which requires all nurses to be ‘open and honest, act with

    integrity and uphold the reputation of your profession’. Mr Edenborough submitted that

    your dishonest conduct constituted a fundamental breach of the Code and was so

    sustained as to be likely to undermine the reputation of the profession and the

    confidence that members of the public have in it.

    In relation to impairment, Mr Edenborough again referred the panel to the case of

    Parkinson and how it emphasised the difficulty of remedying dishonesty. He submitted

    that your conduct could affect public confidence in the profession: it prevented your past

    employers from making a well-informed decision and from making a proper assessment

  • of any risks involved in your practice. Mr Edenborough acknowledged that there have

    been no questions regarding your clinical practice. Nonetheless he submitted that

    because of your dishonest conduct there must be an element of risk in the future which

    becomes more acute when elderly patients and those suffering dementia are involved.

    Mr Edenborough referred the panel to the case of Nicholas-Pillai v General Medical

    Council [2009] EWHC 1048 (Admin) and its relevance to your conduct during the

    hearing. This was relevant to the content of your email of disclosure dated 16 October

    2015 to your latest employer (Service Care Solution Recruitment Agency). In that email

    you wrote: ‘Whilst a finding of fact in respect of the historical allegations was made, it

    did not consider that it altered the circumstances of the case and or that my current

    fitness to practice [sic] has been judged to be impaired.’ Mr Edenborough submitted that

    this email was misleading, minimised the allegations and put a gloss on the then current

    position. Mr Edenborough further submitted that a reference from (Dr 10) dated 3

    November 2015 was made without the knowledge of these proceedings.

    You told the panel that it had never been your intention to be dishonest with your recent

    employers. You understood the need to be honest and how public confidence can be

    eroded by failing to make relevant disclosure. You stated that you understood that

    dishonesty is a serious matter, but believed that the ‘conduct being complained of is

    remediable’. You stated that you have ‘sought to put things right’ by demonstrating

    insight, by being open with your recent employers and informing the relevant

    recruitment agencies with whom you are engaged of these proceedings. You stated that

    you have taken remedial steps. You said that your fitness to practise is not impaired and

    that the suggestion of continued dishonest behaviour on your part ‘is not made out’.

    You said that you have been working since your dismissal and have complied with the

    interim conditions of practice imposed on your registration. You submitted that there

    was no evidence of real risk of harm to patients nor that public confidence has been

    undermined and that you are of good character in the sense that you have no criminal

    record. On the contrary you stated that you have provided the panel with evidence of

    good practice, that you have engaged with these proceedings and that you have made

    relevant disclosures in your recent job applications. In regard to the suggestion that your

    email of disclosure to your latest employer, dated 16 October 2015, is misleading in

  • relation to the panel’s findings in October 2015, you said that this was not your intention

    and pointed out that English is not your first language. Further in response to the

    criticism raised in relation to the letter of reference from (Dr 10) which was written

    without knowledge of the panel’s findings of facts in October 2015, you stated that at the

    time you requested it the panel had not made such findings. You had requested a

    written reference from (Dr 10) for general purposes and it was not initially intended for

    these proceedings. Further when you obtained the reference letter you did not think to

    go back to the author of the reference letter and inform him of the panel’s findings as

    you assumed that, having informed your manager of these, (Dr 10) would also have

    been aware of them. You referred the panel to the case of PSA v (1) GMC (2) Uppal

    [2015] EWHC 1304; CHRE v NMC and Paula Grant [2011] EWHC 927 (Admin); and

    Cheatle v GMC [2009] EWHC 645 (Admin).

    The panel first considered whether the facts found proved amounted to misconduct. It

    was mindful of its findings relating to the multiple instances of similar dishonest conduct.

    These involved various attempts to misrepresent the truth to different employers in

    relation to your previous dismissals and the NMC proceedings. Your conduct concerned

    five potential employers. The panel found that, by acting as you did, you prevented

    potential employers from reaching a well-informed decision by deliberately concealing

    relevant information which would have had a bearing on the assessment of any risks in

    your practice. Although there were no concerns raised about your clinical practice, the

    panel concluded that your dishonest conduct was serious in particular because it

    directly involved your responsibility as a nurse and it was repeated on multiple

    occasions between 2011 and 2014. The panel found that your conduct was contrary to

    the standards expected of a registered nurse and impacted on public confidence in the

    profession. The panel was satisfied that your conduct indicated a pattern of dishonest

    behaviour and as such it also raised concerns as to public protection matters.

    The panel found that you had breached the following parts of the Code (2008):

    Preamble - The people in your care must be able to trust you with their health and

    wellbeing

    To justify that trust, you must:

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

    profession.

    In particular the following paragraphs are relevant:

    Paragraph 51 - You must inform any employers you work for if your fitness to practise is

    called into question.

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

    At the time of the facts found proved you were an experienced nurse with two degrees a

    BSc (Hons) Management, 2004, University of Hull and an MSc Mental Health Nursing,

    2007, University of Essex. In the course of the hearing you displayed a very good

    command and understanding of spoken and written English. The panel was satisfied

    that you were well aware of the standards expected of you, especially the need to be

    honest and truthful, and that your actions fell seriously short of what is expected of a

    registered nurse. It determined that, individually and cumulatively, your actions

    amounted to misconduct.

    The panel then considered whether your fitness to practise is currently impaired by

    reason of that misconduct.

    The panel was mindful that impairment has been defined by the NMC as a registrant’s

    suitability to remain on the Register without restriction.

    It took into account its findings on the facts and misconduct. The panel bore in mind its

    duty to protect patients and the wider public interest, including the need to uphold

    proper standards of practice and of behaviour and to maintain public confidence in the

    profession.

    The panel concluded that your past misconduct which involved repeated dishonesty

    breached fundamental tenets of the profession, namely honesty and integrity, and

  • brought the profession into disrepute. It also had the potential to raise public protection

    concerns.

    The panel then considered whether in the future there is likely to be a repetition of

    similar conduct. The panel took into consideration matters such as insight and remorse

    and also whether your conduct was capable of remedy; whether it has been remedied,

    and whether it is likely to be repeated.

    You have engaged with these proceedings and you gave evidence. However, in your

    evidence you appeared not to accept the panel’s findings of dishonesty made against

    you and suggested that it all happened ‘by mistake’. Although you have expressed an

    understanding of the seriousness of dishonesty as a general abstract concept, you

    demonstrated little or no insight in to your actual dishonesty. You seemed to have

    distanced yourself from the conduct found proved. You have not apologised for it and

    have not shown an understanding of how that conduct could impact on colleagues,

    patients, the reputation of the profession and the NMC as regulator. You were evasive

    and gave lengthy unfocused responses to questions.

    In regard to your email dated 16 October 2015, produced at this stage of the hearing,

    the panel considered that the paragraph quoted above was misleading in that it could

    give the impression that the panel had made a finding that your fitness to practise was

    not impaired.

    You put before the panel a number of documents and reference letters which made

    positive comments about your clinical practice and integrity. However, it was not clear to

    what extent the authors of those references had been made aware of the panel’s

    findings. In particular (Dr 10)’s reference was provided without knowledge of these

    proceedings. In any event the panel considered that the weight of the evidence of good

    clinical practice on your part is severely undermined by the findings of repeated and

    sustained dishonesty made against you. These findings demonstrated a pattern of

    deceitful behaviour on your part and raised serious questions about your attitude and

    integrity.

  • The panel is aware that dishonesty is difficult to remedy, especially when repeated and

    sustained over a prolonged period of time. You acted in your own interests by not

    disclosing relevant information to your then potential employers and secured nursing

    posts by way of deception. The panel was not satisfied that you have developed insight

    into your past misconduct. Although in your evidence you described yourself as being

    methodical and meticulous and indicated that you have taken appropriate disclosure

    steps in your recent dealings with employers and agencies, in the light of your lack of

    insight the panel cannot be satisfied that there will be no repetition of your misconduct.

    In the circumstances the panel cannot be satisfied that such misconduct would not be

    repeated in the future.

    Your misconduct was so serious that the panel has concluded that your fitness to

    practise is currently impaired.

    The panel is satisfied that the need to protect the public, to uphold proper professional

    standards and public confidence in the professions and in the NMC as the regulator

    would be undermined if a finding of impairment were not made in this case.

    The panel has therefore concluded that your fitness to practise is currently impaired by

    reason of your misconduct.

  • Decision and reasons on sanction:

    Mr Amavih-Mensah,

    Having determined that your fitness to practise is currently impaired by reason of your

    misconduct, the panel considered what sanction, if any, to impose.

    In considering the issue of sanction, the panel had regard to Mr Edenborough’s

    submissions and those made by you. The panel took account of all the documentary

    and oral evidence before it. In particular it had regard to your evidence given at this

    stage of the proceedings. The panel took into account also the NMC’s revised Indicative

    Sanctions Guidance (ISG) (June 2012).

    Mr Edenborough referred the panel to its previous decisions and to his submissions on

    misconduct and impairment. He referred also to the ISG. He reminded the panel that, in

    reaching its decision on this matter, it must act proportionately taking account of your

    interests and the public interest.

    You provided the panel with a bundle containing your most recent emails of disclosure

    to the recruitment nursing agencies with whom you are engaged and a number of

    reference letters. You stated that you understood the need to be open and honest and

    to be compliant with the requirements of the nursing profession. You stated that you

    have taken steps to ensure that the failings found proved were not repeated. In reading

    through the panel’s decision on misconduct and impairment, you said that you had

    realised that you were ‘at fault’ and that you accepted full responsibility. However upon

    questioning by the panel, you stated that you accepted that in completing your

    application forms you had made mistakes but that you did not intend to be deceitful.

    Although you accepted the panel’s findings in relation to your failings, you maintained

    that you did not intend to be dishonest. You stated that you were sorry that your failings

    have been interpreted in this way.

    You said that you have continued working as a registered nurse and reminded the panel

    that, upon adjourning the hearing in October 2015, it had found an interim conditions of

    practice order was sufficient to address public protection and the public interest

  • concerns. You reiterated that you have taken steps to remedy your conduct. You

    referred the panel to the most recent written references you have produced at this stage

    of the proceedings. You asked the panel to be proportionate and referred it to the

    mitigating circumstances in your case and to the potential adverse impact of any

    sanction on you and your family. You referred the panel to the NMC ISG and submitted

    that the panel should impose no sanction or the least restrictive sanction.

    The panel accepted the legal assessor’s advice.

    The panel was mindful of its duty to serve the public interest. This includes not only the

    protection of the public, but also maintaining proper standards of conduct and behaviour

    and upholding the reputation of the profession and the NMC as regulator.

    The panel recognised that it must apply the principle of proportionality, balancing the

    public interest with your own interests, and taking account of the aggravating and

    mitigating factors in the case.

    The panel accepted that the purpose of any sanction is not to be punitive, although it

    may have a punitive effect. The purpose of sanctions is to protect the public from those

    who are not fit to practise, to maintain proper standards of conduct and to uphold

    confidence in the profession and the NMC as its regulator.

    In reaching its decision, the panel as an independent body exercised its own

    professional judgment and took into account the NMC ISG.

    The panel considered the aggravating features. These involved multiple instances of

    dishonest conduct between 2011 and 2014. You made no admissions to the dishonesty

    found proved and continued to deny this even at this stage of the proceedings. You

    displayed a continuing lack of insight in respect of the dishonesty found proved.

    Although at this stage of the proceedings, you made a qualified apology for your

    conduct, you again denied that you intended to be dishonest, thereby rejecting the

    panel’s findings. Your dishonesty was deliberate, persistent and sustained. You were an

    experienced and educated nurse, well aware of what was expected of you. Your

  • dishonest conduct in relation to the multiple incidents found proved was arrogant and

    showed a disregard for the impact of your actions on potential employers’ assessment

    of risk and on the reputation of the profession. By acting as you did you abused your

    position of trust. Because of your persistent and sustained dishonest conduct and your

    current lack of insight the panel had concerns regarding your attitude and ability to

    understand fully your responsibility as a registered nurse. Your conduct raised serious

    concerns regarding public protection and public interest matters.

    The mitigating factors are that you have engaged with these proceedings. The

    references refer to your good clinical skills and nursing practice, albeit in each case they

    referred to your services for only a limited period of time. There is no evidence before

    the panel of any subsequent incident. The panel had regard to the evidence about your

    personal financial circumstances including your responsibilities for others.

    The panel first considered whether to take no action. This would be wholly insufficient.

    The misconduct found proved is so serious that it demands the imposition of a sanction.

    The panel then considered a caution order. Your misconduct was repeated over a

    significant period of time and it is compounded by your continuing lack of insight. This

    misconduct cannot properly be regarded as being at the lower end of the spectrum of

    impaired fitness to practise. Accordingly a caution order would be insufficient. It would

    not protect the public nor would it address the need to protect the public interest in

    maintaining confidence in the profession and upholding proper standards of conduct

    and behaviour.

    The panel then considered a conditions of practice order. There were no apparent

    concerns about your clinical practice as a registered nurse but the case concerned your

    attitude and behaviour. No conditions of practice could be formulated which would

    address the attitudinal aspects of this case. A conditions of practice order would not be

    sufficient to protect the public nor would it meet the wider public interest.

    The panel next considered a suspension order. You abused your position of trust;

    showed lack of regard for others in the profession; you acted dishonestly on multiple

  • instances, breached fundamental tenets of the profession and damaged its reputation.

    Although there are positive references about your clinical practice, these have limited

    weight against the background of sustained dishonesty and your continuing lack of

    insight. The dishonesty found proved is so serious that it is fundamentally incompatible

    with your continuing to remain on the register. In these circumstances a period of

    suspension would not be sufficient to protect the public nor would it send out an

    appropriate message to the public and the profession. Such an order would be

    insufficient as a sanction.

    The panel therefore concluded that the only sufficient and proportionate sanction is a

    striking-off order. The need to protect the public and to uphold public confidence in the

    profession could not be achieved if your name were to remain on the register.

    The panel was satisfied that these considerations outweighed any consequential

    financial hardship or other impact that a striking-off order may have on you

    Your name will be removed from the NMC register. You may not apply for restoration

    until five years after the date that this decision takes effect.

    This decision will be confirmed to you in writing.

    The order will take effect 28 days from the date when notice of it is deemed to have

    been served upon you. You have the right to appeal this decision.

  • Decision and reasons on interim order: Mr Amavih-Mensah,

    The panel considered whether to impose an interim order to cover the appeal period of

    28 days or, if an appeal is lodged, the time necessary to cover that appeal.

    Mr Edenborough, on behalf of the NMC, applied for an interim suspension order of 18

    months to cover the appeal period of 28 days and the resolution of any appeal. He

    submitted that, given the panel’s decision, such an interim order is necessary to protect

    the public and is otherwise in the public interest.

    You submitted that the panel should not impose an interim suspension order. You

    stated that this would prejudice your ability to practise, to remedy your failings and

    would and have an impact on your personal circumstances. You reminded the panel

    that when it adjourned proceedings in October 2015, it considered an interim conditions

    of practice order to be proportionate and sufficient to address the concerns raised. You

    stated that you complied with that order. You asked the panel to balance the public

    interest with your interests and to apply the principle of proportionality.

    The panel accepted the advice of the legal assessor.

    The panel first considered whether an interim order is necessary in the circumstances of

    this case. It had regard to its findings at both the impairment and sanction stages. The

    panel identified at those stages that there was a risk of repetition and lack of insight. If

    the past conduct were repeated, it could place patients at risk of harm and would impact

    on the reputation and standards of the profession. The panel therefore concluded that

    an order was necessary on the grounds of public protection and was otherwise in the

    public interest.

    The panel considered an interim conditions of practice order. It was mindful that an

    interim conditions of practice order was confirmed by this panel upon adjourning the

    hearing in October 2015. However the circumstances have now changed. An interim

    conditions of practice order would not be sufficient to satisfy the wider public interest

  • and to address the risks identified for the same reasons that this panel excluded a

    conditions of practice order in its substantive determination on sanction.

    The panel, therefore, concluded that these matters were so serious that only an interim

    suspension order could satisfy the public interest concerns in this case and the need to

    protect the public.

    The panel acknowledged the impact that such an order will have on your personal

    circumstances. However, the panel was satisfied that the imposition of an interim

    suspension order is proportionate and that any other order would be inconsistent with its

    decision to strike your name off the NMC register.

    The panel therefore directed that your registration be suspended forthwith, for a period

    of 18 months. Accordingly your registration will be suspended from today.

    The substantive decision removing your name from the register will take effect 28 days

    from the date when notice of that decision is deemed to have been served upon you. If,

    in the interim, you exercise your right of appeal, this interim order suspending your

    registration will continue to have effect until that appeal is determined.

    This decision will be confirmed to you in writing.

    This concludes these proceedings.