1

Fitness to Practise Committee Substantive Hearing

18 - 20 September 2017 Nursing and Midwifery Council 2 Stratford Place, Montfichet Road, London, E20 1EJ

Name of Registrant Nurse: Marie Andrea Mcdowell NMC PIN: 09C0564E

Part(s) of the register: Registered Nurse – Sub part 1 RNA – Adult (Level 1) – 9 April 2010

Area of Registered Address: England

Type of Case: Misconduct

Panel Members: Monica French (Chair, Lay member)

Julia Grant (Registrant member)

Val Evans (Lay member)

Legal Assessor: Nigel Mitchell

Panel Secretary: Atanas Angelov

Representation: Not present and not represented in absence

Nursing and Midwifery Council: Represented by Nazmeen Imambaccus,

counsel, instructed by NMC Regulatory Legal

Team.

Facts proved: 2, 3 and 4 (insofar as charges 2 and 3 are

concerned).

Facts not proved: 1 and 4 (insofar as charge 1 is concerned)

Fitness to practise: Impaired

Sanction: Striking-off order Interim Order: Suspension order (18 months)

2

Details of charge:

That you a registered nurse, whilst employed by University Hospitals NHS Foundation Trust in/around 3 December 2015 you;

1. Took £80, in cash, from Patient A’s personal belongings

2. Arranged for an electronic transfer of money, to the value £104, from Patient A’s Lloyds account to a rental account connected to you

3. Arranged for an electronic transfer of money, to the value of £200, from Patient A’s Nationwide account to a rental account connected to you

4. Your actions in charges 1 and/or 2 and/or 3 were dishonest in that you sought to make a financial gain at the expense of Patient A

AND in light of your conduct as set out above, your fitness to practise is impaired.

3

Decision on Service of Notice of Hearing: The panel was informed at the start of this hearing that Ms Mcdowell was not in

attendance and that written notice of this hearing had been sent to her registered

address by recorded delivery and by first class post on 27 July 2017. Royal Mail “Track

and Trace” documentation confirmed that the notice of hearing was sent to Ms

Mcdowell’s registered address by recorded delivery on that date.

The notice letter provided details of the allegation, the time, dates and venue of the

hearing and, amongst other things, information about Ms Mcdowell’s right to attend, be

represented and call evidence, as well as the panel’s power to proceed in her absence.

Ms Imambaccus, on behalf of the NMC submitted the NMC had complied with the

requirements of Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to

Practise) Rules 2004, as amended (“the Rules”).

The panel accepted the advice of the legal assessor.

In the light of all of the information available, the panel was satisfied that Ms Mcdowell

has been served with notice of this hearing in accordance with the requirements of

Rules 11 and 34.

Decision on proceeding in the absence of the Registrant: Rule 21 (2) (b) states:

“Where the registrant fails to attend and is not represented at the hearing, the

Committee...may, where the Committee is satisfied that the notice of hearing has

been duly served, direct that the allegation should be heard and determined

notwithstanding the absence of the registrant...”

4

Ms Imambaccus invited the panel to proceed in the absence of Ms Mcdowell on the

basis that she had voluntarily absented herself. Ms Imambaccus submitted that there

was no reason to believe that an adjournment would secure Ms Mcdowell’s attendance

on some future occasion and invited the panel to proceed in her absence.

The panel accepted the advice of the legal assessor. The panel noted that its

discretionary power to proceed in the absence of a registrant under the provisions of

Rule 21 is one that should be exercised “with the utmost care and caution”.

The panel took account of the contents of the email from Ms Mcdowell to the NMC Case

Officer, dated 13 September 2017, in which she stated:

“… I won’t be attending due to lack of money and representative.”

The panel also had regard to the fact that the NMC Case Officer had explained to Ms

Mcdowell that the hearing procedure is designed to accommodate the needs of

unrepresented registrants and that the NMC may provide financial assistance for her to

attend the hearing, subject to appropriate evidence from Ms Mcdowell to support this.

However, no response was forthcoming from Ms Mcdowell.

The panel has decided to proceed in the absence of Ms Mcdowell. In reaching this

decision, the panel has considered the submissions of the case presenter, and the

advice of the legal assessor. It has had regard first and foremost to Ms Mcdowell’s right

to a fair hearing and to the overall interests of justice and fairness to both parties. In

support of proceeding the panel took into account the following factors:

• No application for an adjournment has been made by Ms Mcdowell;

• There is no reason to suppose that adjourning would secure Ms Mcdowell’s

attendance at some future date;

5

• Two witnesses have attended today to give live evidence;

• Not proceeding may inconvenience the witnesses, their employer(s) and, for

those involved in clinical practice, the clients who need their professional

services;

• The charges relate to events that occurred in December 2015. Further delay may

have an adverse effect on the ability of witnesses accurately to recall events;

• There is a strong public interest in the expeditious disposal of the case.

As Ms Mcdowell is not attending she will not be able to challenge the evidence relied

upon by the NMC and will not be able to give evidence on her own behalf. However, in

the panel’s judgment, this can be mitigated. The panel can make allowance for the fact

that the NMC’s evidence will not be tested by cross examination and, of its own volition,

can explore any inconsistencies in the evidence which it identifies. Furthermore, the

disadvantage is the consequence of Ms Mcdowell’s decision to absent herself from the

hearing.

In these circumstances, the panel has decided that it is fair, appropriate and

proportionate to proceed in the absence of Ms Mcdowell. The panel will draw no

adverse inference from Ms Mcdowell’s absence.

6

Background

The charges arose whilst Ms Mcdowell was employed as a registered nurse by

University Hospital Southampton Trust (‘the Trust’).

Patient A was an in-patient at the Trust from sometime in November until 19 December

2015. On 3 December 2015 Patient A was transferred to the operating theatre for

emergency surgery. On 7 December 2015 Patient A realised that his wash bag, in

which he had placed his wallet, was missing. His wallet contained £80 cash and two

bank cards.

On 18 December 2015, Patient A’s wash bag and wallet were found hidden in an

unlocked store cupboard by a sister at the Trust. When his wallet was returned to

Patient A, he believed that £80 cash was missing.

Following his discharge from hospital, Patient A, upon accessing his bank account

online discovered that on 8 December 2015 a bank transfer of £200 had been made,

without his authorisation. Patient A advised the Trust and at a later date Mr 1, Senior

Manager in Radiology commenced an investigation.

During the investigation, it transpired that on 8 December 2015 another bank transfer of

£104 had been made without Patient A’s authorisation from a different bank account.

Both bank transfers, amounting to a total of £304, were tracked to Ms Mcdowell’s rental

account, Sovereign Housing. The transactions of £200 and £104 were paid via

AllPay.com and then were transferred to Sovereign Housing in order to discharge part

of Ms Mcdowell’s rent.

During the Trust investigation Ms Mcdowell admitted that she had in fact transferred a

total of £304 into her rent account. However, she claimed, she did not know that these

were Patient A’s accounts. Ms Mcdowell alleged that Colleague A, Band 5 nurse at the

7

Trust, borrowed £350 from her in early November 2015, and that in December 2015

Colleague A wrote the two bank account numbers on a piece of paper, gave it to her

and told her to take £200 from one account and £150 from another. Ms Mcdowell then

transferred £200 and £104 from those accounts to her rent account.

Decision and Reasons on application under Rule 31

Ms Imambaccus applied under Rule 31 of the Rules to allow the written statements of

Patient A and Ms 2, Client Services Advisor at AllPay, into evidence.

Miss Imambaccus submitted that these documents are relevant, as they go to the heart

of the charges. She also submitted that no prejudice would be caused to Miss

Mcdowell, as she had been notified that the NMC would be relying on documentary

evidence as opposed to live evidence. Ms Imambaccus further submitted that it would

be entirely appropriate for this matter to be dealt with solely on the basis of the

documentary evidence as the contents of these witness statements were not in dispute.

The panel was satisfied that the documentation was clearly relevant. It also accepted

that, as Miss Mcdowell has been informed of the NMC’s intention to rely on this

documentary evidence and the fact that the matters within them are not in dispute, there

was no injustice in adducing the documentation into evidence.

Accordingly, the panel allowed the application.

Decision on the findings on facts and reasons

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

8

facts will be proved if the panel was satisfied that it was more likely than not that the

incidents occurred as alleged.

In reaching its decisions on the facts, the panel took into account all the oral and

documentary evidence in this case. The panel heard oral evidence from 2 witnesses

called on behalf of the NMC:

• Mr 1, Senior Manager in Radiology at the Trust;

• Colleague A, Band 5 Registered Nurse at Southampton General Hospital;

It also had regard to the written statements of Patient A and Ms 1, Client Services

Advisor at AllPay.com Limited.

The panel found that Mr 1 was a credible and reliable witness. He was fair and

balanced in his evidence and when he was uncertain about some aspects of his

evidence he admitted it and did not attempt to speculate.

The panel also considered that Colleague 1 was a credible witness. She answered all

the questions put to her. Her evidence was clear and consistent throughout and with her

witness statement.

The panel considered each charge and made the following findings:

The panel first considered charge 1.

1. Took £80, in cash, from Patient A’s personal belongings

This charge is found NOT proved.

9

In reaching this decision, the panel took into account all the evidence in this case and in

particular the witness statement of Patient A. It was mindful that around 3 December

2015, Patient A had to go to the operating theatre for surgery. Patient A stated that he

had asked an unidentified nurse what to do with his wash-bag when he was in theatre

and she assured him that she would lock it away and he could retrieve it after he had

recovered from theatre. Patient A confirmed that in the wash-bag he had a mobile

phone, wallet which contained £80 in cash (notes), two debit cards (from banks Lloyds

and Nationwide) and some toiletries.

Later in December, when Patient A requested his wash-bag back he was informed that

it had gone missing and the Hospital then commenced a search for it. On 18 December

2015 Patient A’s wash-bag was found in a nursing cupboard with all the contents except

for the £80 cash.

Patient A’s evidence is that there was £80 in the wash-bag when he initially gave it to

the nurse prior to being admitted to the theatre. He also stated that the £80 was missing

from his wash-bag when it was returned to him. However, there is no evidence to

suggest that Ms Mcdowell had taken the cash. Patient A last saw his wash-bag on 3

December 2015 and it was not found until 18 December 2015. Mr 1 confirmed in his

evidence that in these circumstances any number of nurses or indeed other persons

could have had contact with the wash bag.

Accordingly, and in the light of the absence of any evidence that it was Ms Mcdowell

who took the money, the panel found charge 1 not proved.

The panel next considered charge 2.

2. Arranged for an electronic transfer of money, to the value £104, from Patient A’s

Lloyds account to a rental account connected to you

This charge is found proved.

10

In reaching this decision, the panel took into account all the evidence in this case.

In July 2016, having been asked by the Trust to check his bank account, Patient A

discovered that £104 had in December been transferred from his Nationwide account to

a company in Hereford (Sovereign Housing Group), without his authorisation or

knowledge.

In her written statement, Ms 1 explained the procedure of making a payment to

Sovereign Housing Group through Allpay.com. She stated that in the event of wishing to

make a payment to Sovereign Housing Group, the process would be to call the

automated payment telephone service, enter a 19 digit PRN, enter the amount to be

paid and the number of the card being used for payment, the expiry date and the three

digit security code on the back of the card. The process does not require the name of

the card holder.

Ms 1 confirmed that Ms Mcdowell holds an account with Sovereign Housing Group Ltd,

and that on 8 December 2015, a caller using Ms Mcdowell’s PRN number used the

automated telephone service to make three payments for the amount of £200 (at 10:33

hours), £104 (at 10:38 hours) and £400 (at 14:51 hours).

It was not in dispute that Ms Mcdowell had used Patient A’s bank accounts to make the

10:33 payment to the amount of £200 and the 10:38 payment to the amount of £104 to

contribute towards her monthly rent of £704. The £400 transfer at 14:51 was made

using Ms Mcdowell’s own bank account.

The panel had sight of the report provided by Ms 1, which when cross referenced with

Patient A’s statement, confirmed that his bank cards were used for the 10:33 and 10:38

payments. Accordingly, the panel found charge 2 proved.

The panel next considered charge 3.

11

3. Arranged for an electronic transfer of money, to the value of £200, from Patient A’s

Nationwide account to a rental account connected to you

This charge is found proved.

In December 2015 Patient A discovered that during his stay in hospital £200 had been

transferred from his Lloyds classic account to a company in Hereford (Sovereign

Housing Group), without his authorisation or knowledge. He alerted the Trust about this

transaction.

The panel has already found that Ms Mcdowell holds an account with Sovereign

Housing Group Ltd, and that on 8 December 2015, a caller using Ms Mcdowell’s PRN

number used the automated telephone service to make three payments for the amount

of £200 (at 10:33), £104 (at 10:38) and £400 (at 14:51).

It was also not in dispute that Ms Mcdowell had used Patient A’s bank accounts to make

payments to Sovereign Housing Group Ltd to the amounts of £200 (at 10:33) and £104

(at 10:38) to contribute towards her monthly rent of £704.

Accordingly, the panel found charge 3 proved.

The panel next considered charge 4.

4. Your actions in charges 1 and/or 2 and/or 3 were dishonest in that you sought to

make a financial gain at the expense of Patient A

This charge is found proved in part.

The panel considered that as charge 1 was found not proved, the part of charge 4

contingent on charge 1 must also fall.

12

The panel therefore considered whether Ms Mcdowell’s actions as particularised in

charges 2 and/or 3 were dishonest in that she sought to make a financial gain at the

expense of Patient A. Whilst the panel has made its determination cumulatively, it did

consider each allegation of dishonesty separately.

The panel was mindful that, whilst Ms Mcdowell accepts having used Patient A’s bank

accounts to make transfers to Sovereign Housing Group Ltd to the amounts of £200 (at

10:33) and £104 (at 10:38) to contribute towards her monthly rent of £704, it is her case

that she did so without knowledge that they were Patient A’s accounts.

The panel had regard to Ms Mcdowell’s statement dated 17 June 2016 produced for the

purposes of the internal investigation at the Trust. Ms Mcdowell stated that in early

November 2015 Colleague A asked to borrow £350 from her and promised to pay the

money back at the end of November. However, Colleague A had not repaid the money.

In early December Colleague A told Ms Mcdowell that she could not remember her PIN

numbers and so she was not be able to withdraw any money. Ms Mcdowell insisted that

she needed the money to pay her rent and it was Ms Mcdowell’s case that Colleague A

then wrote two debit card details on a piece of paper and told Ms Mcdowell that she

should pay her rent taking £200 from one and £150 from the other. Ms Mcdowell

therefore used these bank details under the impression that they were Colleague A’s

bank accounts.

The panel had careful regard to Ms Mcdowell’s account and it identified the following

inconsistencies:

• In support of her account, Ms Mcdowell had provided Mr 1 with two documents,

which she presented as extracts from her bank statements to confirm that she

had made two withdrawals totalling £360 on 6 November, £350 of which she had

given to Colleague A. However, the documents were not original bank

statements and at no point during the internal Trust investigation did Ms

13

Mcdowell present any original bank statements, although this was requested of

her. The panel identified there were inconsistencies between the two bank

statement documents presented to Mr 1, both purporting to be extracts from her

bank account.

• Ms Mcdowell alleged that Colleague A owed her £350, however the two

payments of £200 and £104 that she made from the accounts only amount to a

total of £304, which means that there was a shortfall of £46 in the money

allegedly owed to Ms Mcdowell by Colleague A. The panel had regard to Ms

Mcdowell’s explanation as to that discrepancy, namely that she had first

transferred £400 to Sovereign Housing Group Ltd from her own account and that

she had paid the balance from what she believed to be Colleague A’s bank

accounts. However, having had sight of the report of the transactions provided by

AllPay.com, the panel observed that the transfers from Patient A’s account took

place at 10:33 and 10:38 and the £400 transfer from Ms Mcdowell’s account did

not take place until 14:51, some 3 hours later.

• Further, Ms Mcdowell, at no stage in the investigation gave a satisfactory

explanation for her failure to recoup the £46 shortfall. If Ms Mcdowell was still

owed £46 following the two transfers to the rent account then there was no

reason for her not to transfer the sum of £46 from the bank account from which

she had transferred the £104 as she said she had been told to do by Colleague

A.

• There is no reliable evidence to show that Ms Mcdowell had withdrawn cash to

loan to Colleague A. Ms Mcdowell had provided two documents, which purported

to be extracts from her bank statements, demonstrating that she had withdrawn a

total of £360 on 6 November. However, Ms Mcdowell was inconsistent as to what

she did with the money, as during her meeting with Mr 1 on 29 June 2016 she

had stated that the cash machine ‘wouldn’t allow me to take the full £350 so I

took £320 and I needed £40 to pay for something else for myself – petrol or

14

something’.

• Ms Mcdowell had confirmed to Mr 1 that her relationship with Colleague A was

purely professional and that they were not friends. The panel found it highly

unlikely that Ms Mcdowell would lend £350 in cash to a colleague, with no

security or receipt and with no explanation as to what the money was for.

When Ms Mcdowell’s case was put to Colleague A, she firmly denied that any of it was

true. Colleague A was adamant that she had never asked Ms Mcdowell for a loan as

she did not need the money. The panel found that Colleague A was a credible and

reliable witness who gave clear and consistent evidence. Accordingly, it preferred

Colleague A’s evidence to Ms Mcdowell’s account.

This is a two part test in relation to dishonesty. Firstly, the panel had to determine

whether Ms Mcdowell’s actions were dishonest according to the standards of

reasonable and honest people. Secondly, and only if the first test was met, the panel

had to determine whether it is more likely than not that Ms Mcdowell realised that what

she was doing was, by those standards, dishonest.

The panel had no doubt that reasonable and honest people would find Ms Mcdowell’s

actions by arranging for an electronic transfer of money from a patient’s bank accounts

to a rental account connected to her, without authorisation, as dishonest. Without any

plausible justification there was no reason for Ms Mcdowell to act in the described

manner other than to make a financial gain at the expense of Patient A.

The panel therefore also found that Ms Mcdowell herself would have realised that what

she was doing was dishonest in accordance with those standards.

Accordingly, the panel found charge 4 proved in respect of charges 2 and 3.

15

Submissions on misconduct and impairment

Having announced its finding on all the facts, the panel then moved on to consider,

whether the facts found proved amount to misconduct and, if so, whether Ms

Mcdowell’s fitness to practise is currently impaired. The NMC has defined fitness to

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

In her submissions Ms Imambaccus invited the panel to take the view that Ms

Mcdowell’s actions amount to a breach of The Code: Professional standards of practice

and behaviour for nurses and midwives (2015). She then directed the panel to specific

paragraphs and identified where, in the NMC’s view, Ms Mcdowell’s actions amounted

to misconduct.

Ms Imambaccus 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. She submitted

that the dishonesty found proved fell far short of the standards expected of a registered

nurse and therefore amounted to serious misconduct.

She 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 maintain proper standards and maintain public confidence in the

profession and in the NMC as a regulatory body. Ms Imambaccus referred the panel to

the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery

Council (2) Grant [2011] EWHC 927 (Admin).

The panel has accepted the advice of the legal assessor which included reference to a

number of relevant judgments.

The panel adopted a two-stage process in its consideration, as advised. First, the panel

must determine whether the facts found proved amount to misconduct. Second, only if

16

the facts found proved amount to misconduct, the panel must decide whether, in all the

circumstances, Ms Mcdowell’s fitness to practise is currently impaired as a result of that

misconduct.

Decision on misconduct

When determining whether the facts found proved amount to misconduct the panel had

regard to the terms of the Code.

The panel, in reaching its decision, had regard to the public interest and accepted that

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

professional judgement.

The panel was of the view that Ms Mcdowell’s actions did fall significantly short of the

standards expected of a registered nurse, and that her actions amounted to breaches of

the Code. Specifically:

Prioritise people You put the interests of people using or needing nursing or midwifery services first. … 1 Treat People as individuals and uphold their dignity … 20 Uphold the reputation of your profession at all times To achieve this, you must:

20.1 keep to and uphold the standards and values set out in the Code

17

20.2 act with honesty and integrity at all times, treating people fairly and without

discrimination, bullying and harassment

20.5 treat people in a way that does not take advantage of their vulnerability or cause

them upset or distress

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

of misconduct. However, Ms Mcdowell acted dishonestly by arranging for an electronic

transfer of money from Patient A’s accounts to a rental account connected to her in

order to make a financial gain at the expense of Patient A. Further, Ms Mcdowell

compounded her behaviour by seeking to put the blame to another nurse, Colleague A.

Honesty, integrity and trustworthiness are the bedrock of a nurse’s practice. The panel

concluded that Ms Mcdowell’s actions and dishonest behaviour, both individually and

cumulatively, demonstrated a lack of integrity falling far short of the standards expected

of a registered nurse and were sufficiently serious to amount to misconduct.

Decision on impairment The panel next went on to decide if as a result of this misconduct Ms Mcdowell’s fitness

to practise is currently impaired.

Nurses occupy a position of privilege and trust in society and are expected at all times

to be honest and open and to act with integrity. They 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:

18

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 commended the following as the appropriate test for panels:

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

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 found that Ms Mcdowell’s misconduct engaged all of the tests both as to the

past and the future as set out in the case of Grant.

19

The panel bore in mind that its primary function is to protect patients and the wider

public interest which includes maintaining confidence in the nursing profession and

upholding the proper standards of conduct and behaviour.

The panel considered Ms Mcdowell’s dishonest actions put Patient A at a risk of

emotional harm, brought the nursing profession into disrepute and breached a

fundamental tenet of the nursing profession.

Dishonesty is by its very nature not easily remediable and Ms Mcdowell has presented

no evidence written or otherwise that she understands the seriousness of her actions

and behaviour and their implications for Patient A, her colleagues and in particular

Colleague A, the public, and the nursing profession. The panel determined that there

exists a real risk of repetition of Ms Mcdowell’s dishonest behaviour and therefore a risk

that she is liable to put patients at a risk of harm in the future.

The panel was also of the view that the public would find Ms Mcdowell’s dishonesty

deplorable. By acting in such a way Ms Mcdowell has brought the profession into

disrepute. Having regard to the principle set out in Grant, the panel is in no doubt that

confidence in the profession would be undermined if, taking into account the serious

nature of Ms Mcdowell’s misconduct and behaviour, a finding of impairment were not to

be made.

Having regard to all of the above, the panel was satisfied a finding of impairment is

necessary on the grounds of public protection and also in the public interest in order to

uphold public confidence in the profession and the NMC as its regulator.

20

Determination on sanction:

The panel has considered this case very carefully and has decided to make a striking-

off order. It directs the registrar to strike Ms Mcdowell’s name from the register. The

effect of this order is that the NMC register will show that Ms Mcdowell has been struck-

off the register.

In reaching this decision, the panel has had regard to all the evidence that has been

adduced in this case. The panel accepted the advice of the legal assessor. The panel

has borne in mind that any sanction imposed must be appropriate and proportionate

and, although not intended to be punitive in its effect, may have such consequences.

The panel had careful regard to the Sanctions Guidance published by the NMC. It

recognised that the decision on sanction is a matter for the panel, exercising its own

independent judgement.

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

following to be aggravating factors:

1. Ms Mcdowell’s dishonesty involved a vulnerable patient.

2. Ms Mcdowell’s misconduct involved a breach of trust in order to obtain a

personal financial gain.

3. Ms Mcdowell blamed another nurse for her dishonest actions.

The panel found the following to be mitigating factors:

1. There is no evidence of any previous regulatory concerns.

2. This was a single incident of misconduct, albeit involving two transactions.

21

The panel considered each of the sanctions in ascending order.

The panel first considered whether to take no action but concluded that this would be

inappropriate in view of the seriousness of the case. The panel decided that it would be

neither proportionate nor in the public interest to take no further action.

Next, in considering whether a caution order would be appropriate in the circumstances,

the panel took into account the Sanctions Guidance, which states that a caution order

may be appropriate where ‘the case is at the lower end of the spectrum of impaired

fitness to practise and the panel wishes to mark that the behaviour was unacceptable

and must not happen again.’ The panel considered that Ms Mcdowell’s misconduct was

not at the lower end of the spectrum and that a caution order would be inappropriate in

view of the seriousness of the case. The panel decided that it would be neither

proportionate nor in the public interest to impose a caution order.

The panel next considered whether placing conditions of practice on Ms Mcdowell

registration would be a sufficient and appropriate response. The panel is mindful that

any conditions imposed must be proportionate, measurable and workable.

The panel concluded that, in the light of the nature of the misconduct and Ms

Mcdowell’s lack of insight, there are no practical or workable conditions that could be

formulated. Ms Mcdowell’s misconduct did not relate to her clinical competence, but to

her honesty and integrity. It therefore cannot be addressed through imposing conditions

upon her registration.

The panel also concluded that the placing of conditions on Ms Mcdowell’s registration

would not adequately address the seriousness of this case and would not protect the

public or uphold public confidence in the reputation of the profession.

22

The panel then went on to consider whether a suspension order would be an

appropriate sanction. It took account of the Sanctions Guidance.

Ms Mcdowell acted dishonestly by arranging for an electronic transfer of money from

Patient A’s accounts to a rental account connected to her in order to make a financial

gain at the expense of Patient A. There is no evidence that Ms Mcdowell understands

the seriousness of her actions or their implications on Patient A, Colleague A or the

reputation on the profession. On the contrary, Ms Mcdowell blamed Colleague A for her

dishonesty and as a result Colleague A attended a police station where she was

interviewed on tape.

The panel has already determined that Ms Mcdowell has demonstrated no insight and

therefore there is a real risk of repetition.

The panel has taken into account the mitigating factors it has identified. It also bore in

mind that there is a public interest in permitting a clinically competent nurse to return to

practice. However, the gravity of Miss Mcdowell’s misconduct substantially outweighs

these factors.

Given the scale of Ms Mcdowell’s compounded dishonesty and lack of integrity,

the panel was of the view that a suspension order would not be a sufficient,

appropriate or proportionate sanction.

Finally, the panel considered imposing a striking-off order. In doing so the panel had

regard to the case of Parkinson v Nursing and Midwifery Council [2010] EWHC 1898 which

stated:

‘nurse found to have acted dishonestly is always going to be at severe risk of having

his or her name erased from the register. A nurse who has acted dishonestly, who

does not appear before the Panel either personally or by solicitors or counsel to

demonstrate remorse, a realisation that the conduct criticised was dishonest, and an

23

undertaking that there will be no repetition, effectively forfeits the small chance of

persuading the Panel to adopt a lenient or merciful outcome and to suspend for a

period rather than direct erasure.'

Dishonesty of the nature found proved seriously undermines public trust in the

profession and members of the public would be gravely concerned if Ms Mcdowell were

permitted to remain on the register. The panel therefore concluded that the seriousness

of Ms Mcdowell’s misconduct is fundamentally incompatible with her remaining on the

register and that a striking-off order is the only sanction which will be sufficient to uphold

public interest in the nursing profession.

Balancing all of these factors and after taking into account all the evidence before it

during this case, the panel determined that the appropriate and proportionate sanction

is that of a striking-off order.

The panel considered that this order was necessary for public protection and to mark

the importance of maintaining public confidence in the profession, and to send to the

public and the profession a clear message about the standard of behaviour required of

a registered nurse.

24

Determination on Interim Order The panel has considered the submissions made by Ms Imambaccus that an interim

order should be made on the grounds that it is necessary for the protection of the public

and is otherwise in the public interest.

The panel accepted the advice of the legal assessor.

The panel was satisfied that an interim suspension order is necessary for the protection

of the public and is otherwise in the public interest. The panel had regard to the

seriousness of the facts found proved and the reasons set out in its decision for the

substantive order in reaching the decision to impose an interim order. To do otherwise

would be incompatible with its earlier findings.

The period of this order is for 18 months to allow for the possibility of an appeal to be

made and determined.

If no appeal is made, then the interim order will be replaced by the striking-off order 28

days after Ms Mcdowell is sent the decision of this hearing in writing.

That concludes this determination.