Fitness to Practise Committee Substantive Hearing 20-21 … · 2017. 11. 23. · 1 Fitness to...

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Fitness to Practise Committee Substantive Hearing

25 September – 2 October 2017 &

20-21 November 2017 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of Registrant Nurse: Mrs Claire Davison NMC PIN: 91A1100E Part(s) of the register: RN1, Registered Nurse (sub part 1)- Adult

(6 March 1994) RNC, Registered Nurse (sub part 1)- Children’s (18 December 1995) SPC, Specialist Practitioner: Children’s Nursing (2 July 2002) RSN, School Nurse- Specialist Community Public Health Nurse (29 November 2002)

Area of Registered Address: England Type of Case: Misconduct Panel Members: David Bleiman (Chair, Lay member)

Michael Duque (Registrant member) Diane Rawstorne (Registrant member)

Legal Assessor: Simon Walsh Panel Secretary: Aoife Kennedy Mrs Davison: Not present and not represented in her

absence. Nursing and Midwifery Council: Represented by Daniel Walker, counsel,

instructed by NMC Regulatory Legal Team. Facts proved: 1, 2, 3, 4, 5, 6, 7, 10, 11, 12, 13 Facts not proved: 8, 9, 14, 15 Fitness to practise: Impaired Sanction: Striking-off order Interim Order: None

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Details of charge:

That you, a registered nurse:

1. On one or more of the occasions set out in Schedule 1 worked a shift or part of a

shift for HCL Workforce Solutions (“HCL”) whilst due to be on duty with the

Blackpool Teaching Hospitals NHS Foundation Trust (“the Trust”).

2. Your conduct in charge 1, above, were dishonest in that you knew you were due

to be on duty with the Trust.

3. On one or more occasions submitted an incorrect mileage claim in respect of one

or more of the dates in Schedule 2.

4. Your conduct in charge 3, above, were dishonest in that you knew the mileage

claims were incorrect.

5. On one or more of the dates set out in Schedule 3 inaccurately recorded accrual

of time off in lieu;

6. Your conduct in charge 5, above, were dishonest in that you knew you that the

time off in lieu recorded was inaccurate.

7. Knowingly submitted additional hours timesheets with a false signature for one or

more of the weeks set out in Schedule 4.

8. On or around 15 April 2013 knowingly submitted a claim for additional hours

worked for which you had already claimed.

9. Your conduct in charge 8, above, were dishonest in that you knew you had

already claimed for the additional hours.

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10. Between around 24 April 2015 and 7 December 2016 did not inform HCL that you

were subject to a Nursing and Midwifery Council (“NMC”) Fitness to Practise

investigation (050206/2015).

11. Your conduct in charge 10, above, was dishonest in that you wished to conceal

that you were being investigated by the NMC.

12. Between around 1 October 2014 and 7 December 2016 did not inform HCL

Workforce Solutions that you were subject to an investigation by the Trust.

13. Your conduct in charge 12, above, was dishonest in that you wished to conceal

that you were being investigated by the Trust.

14. Between around 30 January and 24 April 2015 did not inform HCL Workforce

Solutions that you had been signed off from work at the Trust.

15. Your conduct in charge 14, above, was dishonest.

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

misconduct.

Schedule 1 13 November 2013

20 November 2013

28 November 2013

29 November 2013

2 December 2013

4 December 2013

11 December 2013

13 December 2013

7 January 2014

14 January 2014

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21 January 2014

27 January 2014

7 February 2014

Schedule 2 7 August 2013

3 December 2013

4 December 2013

11 December 2013

13 December 2013

7 January 2014

3 February 2014

Schedule 3 14 January 2014

21 January 2014

3 February 2014

Schedule 4 Week ending 28 October 2012

Week ending 6 January 2013



Week ending 10 February 2013

Week ending 17 February 2013

Week ending 17 March 2013



Week ending 2 June 2013




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

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

address by the Royal Mail ‘Signed for’ service and by first class post on 24 August

2017. Royal Mail “Track and Trace” documentation confirmed that the notice of

hearing was sent to Mrs Davison’s registered address by recorded delivery on that

date.

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

hearing and, amongst other things, information about Mrs Davison’s right to attend,

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

absence. The “Track and Trace” documentation indicated that the notice was

delivered to Mrs Davison’s registered address or to a neighbour and signed for in the

name of Harris on 25 August 2017. Mr Walker 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 light of all of the information available, the panel was satisfied that Mrs Davison

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: The panel had regard to Rule 21 (2) (b) which 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...”

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Mr Walker invited the panel to continue in the absence of Mrs Davison on the basis

that she had voluntarily absented herself. Mr Walker told the panel that Mrs Davison

has had limited engagement with the NMC, and the last time she engaged was in an

undated letter received by NMC on 7 May 2015. Since then, she has not engaged

with the NMC. Mr Walker submitted that Mrs Davison is fully aware of the NMC’s

case and has chosen not to engage, and that there was no reason to believe that an

adjournment would secure her attendance on a future date.

The panel accepted the advice of the legal assessor and 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 care and caution”.

The panel noted that Mrs Davison has not engaged with NMC proceedings since her

letter on 7 May 2015.

The panel decided to proceed in the absence of Mrs Davison. In reaching this

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

advice of the legal assessor. It had regard to the overall interests of justice and

fairness to all parties. It noted that:

• no application for an adjournment was made by Mrs Davison;

• there is no reason to suppose that adjourning would secure her attendance at

some future date;

• there is a strong public interest in the expeditious disposal of the case, which

relates to matters going back to 2013.

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

proportionate to proceed in the absence of Mrs Davison. The panel will draw no

adverse inference from Mrs Davison’s absence in its findings of fact.

Decision and reasons on application pursuant to Rule 31(1): During the hearing, the panel heard an application made by Mr Walker under Rule

31(1).

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The NMC seek to adduce the following written witness statements as hearsay

evidence:

• Ms 6, Operations Manager at HCL

• Ms 7, Case Investigation Manager at the NMC

• Mr 8, Business Manager and HR Consultant at Prospect Business Consulting

• Mr 9, Remuneration and Benefits Officer at the Trust

• Ms 10, Senior Integrated Governance Manager at the Trust

Mr Walker submitted that it would be relevant and fair to admit this hearsay evidence

because in respect of all but one of the witnesses, their role was to produce

uncontested documents. In respect of the one remaining witness (Ms 10) she did

speak to a disputed factual scenario about the timesheets. However, Mr Walker was

able to show the panel that in letters to Mrs Davison dated 15 March 2017, 25 April

2017, and 24 August 2017, the NMC had indicated that her evidence would be

submitted in written form unless Mrs Davison indicated any objection. She had not

done so.


The panel bore in mind that the test it must consider is whether this evidence is

relevant, and whether it would be fair to Mrs Davison to admit it.

The panel considered this evidence to be relevant as the witness statements deal

with matters in the charges.

The panel considered whether it was fair to admit these documents. It noted that Mrs

Davison was served all of the evidence in this case in advance as part of the NMC’s

investigation and so has had ample time to consider these documents. None of the

documents referred to are contested and in respect of Ms 10, her evidence is not the

sole and decisive evidence in the case and other witnesses are available to give

evidence in respect of it.

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The charges against Mrs Davison are serious. The panel is of the view that it would

be fair to admit these statements as the documents speak for themselves and where

Ms 10’s evidence may be in dispute other witnesses will be in attendance who can

speak directly to the issue. As such, the panel determined to hear the evidence and

will attach to it what weight it so determines. If the panel concludes, having heard the

evidence, that this hearsay evidence is not reliable, it will not attach weight to it.

Decision and reasons on application pursuant to Rule 31(1): During the hearing, Mr Walker made an application to hear the evidence of Mrs 1 via

video link (WebEx). He told the panel that Mrs 1 is not able to attend the hearing to

give evidence because of private family matters.

Mr Walker reminded the panel that the test is whether it is relevant and fair to admit

this evidence by means of video link. He said that Mrs 1 is an important witness in

this case and her evidence was relevant to the charges, in particular charge 7. As

regards fairness, Mr Walker told the panel that Mrs Davison had been sent a copy of

Mrs 1’s witness statement and informed that the NMC proposed that Mrs 1 give her

evidence via WebEx. She had raised no objection.


The panel considered the extent to which its assessment of Mrs 1 might be

disadvantaged if she gives evidence via WebEx rather than in person. The panel

accepted that it is preferable for a witness to attend to give evidence but concluded

that it would in this case be placed at no real disadvantage by Mrs 1 giving evidence

via WebEx as it will be able to observe her when she is giving evidence. The panel

noted that Mrs Davison has not objected to evidence being given in this form.

The panel bore in mind the nature of the charges against Mrs Davison and the

potential impact of a finding of dishonesty. However, it considered that Mrs 1’s

evidence was relevant and important and that it would be fair to receive it via

WebEx. The panel will give what it deems appropriate weight to Mrs 1’s evidence.

The panel therefore accepted the NMC’s application.

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Background:

Mrs Davison was employed by the Blackpool Teaching Hospitals NHS Foundation

Trust (the Trust) as a Band 7 Team Leader for Universal Services until her

resignation on 30 January 2015.

The NMC received a referral from the Trust on 23 April 2015 in relation to a number

of allegations against Mrs Davison.

It is alleged that Mrs Davison worked for HCL Workforce Solutions (HCL) on one or

more occasions between 13 November 2013 and 7 February 2014 during her

substantive hours of work at the Trust, and that she did so dishonestly and without

authorisation from the Trust.

It is alleged that Mrs Davison dishonestly submitted incorrect claims for mileage

expenses on one or more occasions, inaccurately and dishonestly recorded accrual

of time off in lieu, knowingly and dishonestly submitted a claim for additional hours

worked for which she had already claimed, and knowingly submitted additional hours

timesheets with a false signature on one or more occasions. It is alleged that Mrs

Davison, by knowingly making false claims, would have retained a financial benefit

for herself and caused loss to the Trust.

It is then further alleged that Mrs Davison failed to inform HCL that she was being

investigated by the NMC and the Trust, and failed to inform HCL that she had been

signed off from work from the Trust on medical grounds. Her actions in doing so

were allegedly dishonest.

Mrs Davison resigned from the Trust prior to the completion of a disciplinary process.

Her clinical abilities and clinical conduct have not been called into question.

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Decision on the findings on facts and reasons In reaching its decisions on the facts, the panel considered all the evidence adduced

in this case together with the submissions made by Mr Walker, on behalf of the

NMC.

The panel heard and accepted the advice of the legal assessor, who referred to the

cases of Re B (Children) [2008] UKHL 35; Hosny v GMC [2011] EWHC 1355

(Admin); Suddock v NMC [2015] EWHC 3612 (Admin); R v Ghosh [1982] QB 1053;

Hussain v GMC [2014] EWCA (Civ) 2246)

In respect of the allegations of dishonesty, the legal assessor advised the panel to

adopt a 2 stage test in accordance with the case of Ghosh. First, the panel should

ask itself if any act by the registrant it found proved would be considered dishonest

by an ordinary reasonable nurse. If so, the panel should then ask itself if this

particular registrant knew that what she did was by those same standards dishonest.

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

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

means that the facts will be proved if the panel was satisfied that it was more likely

than not that the incidents occurred as alleged.

Mrs Davison has not attended to give evidence or to be cross examined. The panel

has drawn no adverse inference from her absence.

The panel took into account all the oral and documentary evidence in this case. The

panel heard oral evidence from five witnesses called on behalf of the NMC:

• Mrs 1, Inspection Manager at Care Quality Commission

At the time of the alleged events Mrs 1 was a Health Visitor and worked as a nurse

in the same clinic as Mrs Davison (Garstang Clinic). At the time, both Mrs 1 and Mrs

Davison were team leaders and carried out similar roles in different areas.

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Mrs 1 was informed by the NMC prior to the commencement of its investigation that

Mrs Davison allegedly used her signature to falsify timesheets. Mrs 1 told the panel

that she was presented with various timesheets with her signature on them. On each

of these she felt her signature had been forged. She said her signature was easy to

copy but that she reached her conclusion as to forgery by looking at other factors

such as the way in which the dates accompanying the suspicious signatures were

written. Further, there were a number of them she said she could not have signed

because they were dated on a Sunday or on dates on which she had been off work

on sick leave. Mrs 1 stated that she did not socialise with Mrs Davison outside of

work and therefore could not have signed these timesheets other than at work.

The panel considered that Mrs 1 was careful about her own position when giving

evidence but admitted that there had been occasions when she had not properly

checked timesheets which she signed. However, in regards to the falsification of her

signature, the panel considered that she was credible.

• Ms 2, School Nurse Practice Teacher at the Trust

Ms 2’s evidence related to whether she had a meeting with Mrs Davison on 4 June

2013 and 7 August 2013. She told the panel that she had written in her diary that a

meeting was booked to take place between her and Mrs Davison on 4 June 2013,

but that she put a line through it, which she would usually do if a meeting was

cancelled. Ms 2 confirmed that her diary for 7 August 2013 did not have an entry for

a meeting. Ms 2 confirmed that she had a diary entry for a meeting with Mrs Davison

on 2 August 2013 with a ‘tick’ mark beside it, so she can assume that the meeting

did take place as planned. She has no diary entry for a meeting on 7 August 2013

and cannot recall if Mrs Davison called at the clinic that day.

The panel considered that Ms 2 was a reliable witness.

• Mrs 3, Head of Clinical Governance at HCL

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Mrs 3 told the panel that Mrs Davison started working for HCL on 6 November 2013

as a locum worker. Mrs 3 expressed concern that Mrs Davison had been signed off

sick for her 3 months’ notice period at the Trust without informing HCL, and had

worked 346.5 hours through HCL during that 3 month period.

Mrs 3 told the panel that Mrs Davison did not notify HCL of the investigation with the

Trust nor the ongoing NMC investigation.

Prior to contacting Mrs Davison, Mrs 3 contacted HR at the Trust on 12 December

2016, who told her that Mrs Davison was excluded from duty on health grounds for

her notice period, and she was asked to provide a sick note to cover this notice

period. Mrs Davison received pay for the period between 30 January and 24 April

2015.

Mrs 3 told the panel that when she spoke on the telephone with Mrs Davison on 14

December 2016, Mrs Davison sounded shocked and said she thought the NMC

investigation was ‘done and dusted’. When Mrs 3 asked her to explain the referral,

Mrs Davison responded by saying that she was working extra shifts at HCL and the

Trust and that her manager was aware that she was working two jobs and was

happy with it. Mrs Davison told Mrs 3 that she was initially reported by an

anonymous person to NHS counter fraud. Mrs Davison told Mrs 3 that she informed

someone at HCL of the situation, although she did not remember what she said or

the name of the person she spoke with, and that they have since left HCL. Mrs

Davison claimed that her solicitor said that all charges were dropped. She then

resigned. She said that she did not work for the Trust during her notice period for

health reasons.

The panel considered Mrs 3 to be a clear and reliable witness.

• Mrs 4, Head of Universal Services at the Trust

At the time of alleged events, Mrs 4 was asked by her line manager to be the

investigatory officer into allegations made against Mrs Davison. Mrs 4 was

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responsible for line managing Mrs Davison for a short period of time from June 2014,

but not before that.

The panel considered that Mrs 4 had some gaps in her memory of events and

largely relied on the investigations of Mr 5. However, the panel found that Mrs 4 was

a credible witness who gave some useful insight into the managerial structure and

policies at the Trust.

• Mr 5, Local Counter Fraud Specialist at the Trust

Mr 5’s principal role is to reactively investigate all matters of alleged fraudulent

activity and to proactively seek to identify potential fraudulent occurrences.

On 13 March Mr 5 met Mrs Davison just prior to her suspension from the Trust when

he accompanied her direct line manager, to obtain her desk diary and additional

timesheets. He next met Mrs Davison when he formally interviewed her.

Mr 5 told the panel that Mrs Davison was working her fulltime day role with the Trust,

and also working as an agency nurse with HCL, mainly at the Royal Manchester

Children’s Hospital. Following his investigations Mr 5 concluded that many of the

HCL shifts were worked when Mrs Davison was due to be on duty with the Trust. In

his view she disguised her absences from the Trust by claiming attendance at

meeting and training courses which she did not attend and by creating false or

misleading diary entries. Some of these were further backed up by fraudulent

mileage expenses claims.

Mr 5 reviewed Mrs Davison’s electronic outlook calendar to check whether she had

any appointments with the Trust on the days relating to her shifts with HCL. Mr 5 told

the panel that he found a pattern showing that Mrs Davison’s Trust appointments for

the days relating to her HCL shifts were questionable.

Mr 5 told the panel that Mrs Davison was a community team leader in her full time

day role. She was based at Freckleton, but her role involved a lot of movement

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outside of the office. Concerns were raised in his mind when appointments which

Mrs Davison had put in her outlook calendar were cancelled, especially where she

had claimed mileage to attend these appointments.

Mr 5 stated that management had tried to put into place some sort of robust system

to record shift times. The team leaders and managers were instructed to fill in

timesheets to test the sheets before introducing them to other staff. All other team

leaders filled in the timesheets correctly and consistently.

Mr 5 told the panel that Mrs Davison completed 2 months’ worth of these timesheets

in a 9 month period before stopping altogether, despite being reminded on a regular

basis to complete them. Mr 5 stated that, when he questioned her about the

timesheets, Mrs Davison told him that she was “playing with them” and they were not

meant to be representative of the truth. When Mr 5 asked why she would play with

them instead of filling in the correct times when she arrived and finished work, she

said that her manager had told her to “play with them”. Mr 5 told the panel that her

manager denied having ever said that.

In relation to Mrs Davison working agency shifts with HCL whilst in paid Trust time,

Mr 5 stated that she had no authority to take such time off and her managers were

not aware that she had not been in work when she was working for HCL. Mrs

Davison told Mr 5 that she had taken time off in lieu (TOIL), but admitted that she

had not requested formal authority to take any time off and had no evidence of the

accrual of TOIL.

The panel considered that Mr 5 was a credible and reliable witness. It found his

explanation of his investigation to be professional and the panel was impressed that

he spontaneously identified and acknowledged a mistake he had made with regards

to one of Mrs Davison’s mileage claims.

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The panel considered each charge separately and made the following findings on

the balance of probabilities:

1. On one or more of the occasions set out in Schedule 1 worked a shift or part of a shift for HCL Workforce Solutions (“HCL”) whilst due to be on duty with the Blackpool Teaching Hospitals NHS Foundation Trust (“the Trust”).

The panel considered this charge in two stages: firstly, whether Mrs Davison worked

the shifts, and secondly, whether she was due to be on duty at the Trust at the time

of those shifts.

In relation to the shifts worked at HCL, the panel was provided with a schedule from

Ms 6. This schedule was supported by documents showing payments from HCL to

Mrs Davison for hours worked. The panel found the schedule to be a wholly reliable

document and used it to satisfy itself that Mrs Davison was working for HCL on every

date mentioned in schedule 1.

The panel heard evidence from Mr 5 that a car journey from Mrs Davison’s work

area for the Trust on the Fylde coast to the Royal Manchester Childrens’ Hospital

would take a minimum of 1 hour and often much longer. For the purposes of its

calculations the panel determined to add 1 hour to Mrs Davison’s start and finish

times at the Childrens’ Hospital to calculate the minimum time she would be away

and unavailable to work for the Trust.

In relation to when Mrs Davison was due to be on duty for the Trust, Mrs 4 told the

panel that Mrs Davison was, at all material times, on a 37.5 hours per week contract

with the Trust. She worked a 9 day fortnight. This meant that instead of working 7.5

hours on each day of a 5 day week, Mrs Davison was expected to work 8.33 hours

(8 hours 20 minutes) on 9 out of 10 days in every 2 weeks. This would give her one

free day in every 2 weeks. Mrs Davison could choose herself which day to take off. If

Mrs Davison started work at 08.20 she would be due to finish no earlier than 16.40.

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The job Mrs Davison was doing required a working pattern of Monday-Friday,

typically between the hours of 9-5pm.

Mrs 4, in her evidence, stated that there would be an expectation that TOIL would be

authorised by the Trust prior to it being taken. She said that the request would be

made in writing and that confirmation that time had been authorised would be

confirmed via email. She told the panel that it is important for this system to be

followed as sometimes the Trust could not authorise TOIL as that could leave them

short-staffed in certain areas and unable to carry out their duties.

Schedule 1 13 November 2013 Mrs Davison worked for HCL from 07.30-14.30.

She was due to work at the Trust from 08.20-15.30, but her work for HCL would

mean that she could not work from 08.20-16.40.

An overriding difficulty for all the dates in schedule 1 was that Mrs Davison’s

absence from the hearing meant that she gave no explanation to cover this, or

indeed any other, period. The panel therefore looked to the justification she put

forward to Mr 5 in her interview under criminal caution and tested this as best it

could.

In interview, Mrs Davison stated that she had taken this day as TOIL. However, there

was no record of TOIL being accrued by her, requested by her, and/or authorized by

an appropriate individual from the Trust. Mrs Davison’s Outlook Calendar states she

was off on annual leave. However, the annual leave application card kept by the

Trust had this day initially marked down as annual leave, but then this had been

crossed out. The panel considered that there was significant inconsistency between

Mrs Davison saying that she took 13 November 2013 off as TOIL, her putting it in her

Outlook calendar as annual leave and what was said on the annual leave application

card. It did not find either explanation to be credible as neither was supported by any

other evidence.

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The panel therefore concluded that it was more likely than not that Mrs Davison

worked the HCL shift when she was due to be at the Trust and had no valid reason

not to be.

20 November 2013 Mrs Davison worked for HCL from 14.00-21.00.

She was due to work until 16.40 but her work for HCL would mean that she could not

work from 13.00-16.40.

Mrs Davison’s explanation for her absence this day was that she had accrued 2

hours TOIL. There is no record of TOIL being accrued by her, requested by her,

and/or authorized by an appropriate individual from the Trust. However, the panel

considered that even with 2 hours TOIL, this would not have enabled her to take off

the amount of time she needed to travel to and to work at HCL.

The panel noted the various changes to Mrs Davison’s version of events and found

that it could not rely on her final explanation of a TOIL day as this was not supported

by her other evidence.

Mrs Davison’s Outlook calendar indicates: ‘meeting with HH (9-11am)’; and ‘13.00-

17.00 Fylde Trust Board Meeting (town hall)’. Mr 5 confirmed in his oral evidence

that Mrs Davison did not attend the Fylde Trust Board meeting. This meeting formed

part of her substantive role. This in itself proves nothing, but the panel noted Mr 5’s

opinion that this was a false or misleading diary entry designed to deter anyone at

the Trust from seeking to contact Mrs Davison when she was working for HCL.



not to be.

28 November 2013

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Mrs Davison worked for HCL from 07.30-14.00.

On this day she was expected to attend a course on behalf of the Trust in Kendal

between 13.00-15.30. However, on 26 November, she sent an email to the course

coordinator saying that she had a chest infection and would not be attending training.

However, there is no record in her sickness report to substantiate this.

Mrs Davison’s explanation was that she had taken the day off as TOIL. This is, in

any event, clearly inconsistent with the explanation she gave to course coordinator at

the time that she was sick.However, there was no record of TOIL being accrued by

her, requested by her, and/or authorized by an appropriate individual from the Trust.

Further, the panel noted that she went to work at HCL on the same day and

considered that she was not unwell despite what she had told the Trust.

Moreover, Mr 5 challenged Mrs Davison about her attendance at the course. At first,

she insisted she had attended but when she was shown that she had worked for

HCL whilst the course was on she accepted that she did not attend, saying the

course date was incorrect. Mr 5 then challenged Mrs Davison as to why she had said

she was sick when this was not substantiated in her sickness record. Mrs Davison

conceded that she was not sick and that her explanation was false. Her true reason

for absence was “private”. She then claimed that she had taken this day off as an

annual leave day.



not to be.

29 November 2013 Mrs Davison worked for HCL from 07.30-14.00.

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She was due to work for the Trust from 08.20-16.40 but could not do so from 08.20-

15.00 because she was working for HCL. Mrs Davison justified her absence to Mr 5

by claiming she had taken the day off as a TOIL day.

There is no record of TOIL being accrued by her, requested by her, and/or

authorized by an appropriate individual from the Trust.



not to be.

2 December 2013 Mrs Davison worked for HCL from 14.30-21.00.

She was due to work for the Trust from 08.20-16.40, but could not do so from 13.30-

16.40 because she was working for HCL.

In interview, she stated that she had taken half-day TOIL. However, there were no

records of TOIL being accrued, requested or authorized.

In an email sent at 14.26 on 2 December 2014 to the coordinator of the courses she

was due to attend on 28 November and 3 December, she reported that she was “still

off” work due to sickness.

The panel considered that Mrs Davison was not sick on 2 December as there was no

record of this in her sickness report, and she was working for HCL on that day. The

panel agreed with Mr 5 that this appeared to be a further attempt by Mrs Davison to

make it more difficult for anyone at the Trust to question her whereabouts.

The panel noted that there was now a pattern developing of inconsistent

explanations.

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not to be.


She was due to work for the Trust from 08.20-16.40, but could not do so from 13.30-

16.40 because she was working for HCL.

In interview, she stated she had taken TOIL. However, there were no records of

TOIL being accrued, requested or authorized.



not to be.


Mrs Davison was due to work for the Trust from 08.20-16.40 but could not do so

from 08.20-15.00 because she was working for HCL.

Mrs Davison’s explanation once again is simply that she took TOIL. There are no

records to show TOIL being accrued, requested or authorized.

The panel noted that there were 3 Trust related events in Mrs Davison’s Outlook

calendar for that day, which is inconsistent with her explanation that it was TOIL. She

was working for HCL in time which overlaps with meetings in her calendar.

The panel considered that there is little credibility in Mrs Davison’s explanation.

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not to be.


Mrs Davison should have been working for the Trust from 08.20-16.40 but could not

do so from 13.30-16.40 because she was working for HCL.

Mrs Davison’s explanation once again is simply that she took TOIL. There are no

records to show TOIL being accrued, requested or authorized.

The panel considered that there was no evidence of TOIL or annual leave cards to

indicate that Mrs Davison would not be at the Trust on 13 December.



not to be.

At this point, the panel looked again at the number of times Mrs Davison had claimed

to take time off in lieu (TOIL), either as full or partial TOIL days, and noted that the

total amount of TOIL Mrs Davison suggested she was using was far in excess of the

amount of TOIL (no more than 8 hours) that could be taken in a 4 week period under

Trust policy. Remembering the evidence that, at this time, the Trust was short-

staffed, the panel concluded that, it was highly unlikely that anyone at the Trust

would have allowed Mrs Davison to take so much more TOIL time than the policy

allowed. This further supported the panel’s general conclusions that Mrs Davison

was wrong to say she used TOIL time to allow her to work for HCL.

7 January 2014 Mrs Davison worked for HCL from 14.30-21.00.

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Mrs Davison explained that she took the time as TOIL. The panel noted that from

this date there was a material change in the evidence available in respect of TOIL.

This was because, from January and February 2014 there were timesheets filled in

by Mrs Davison where she indicated in detail which hours she had worked on which

days.

If Mrs Davison were right that she used accrued TOIL time to enable her to work for

HCL on this day, this should show on the timesheet, reducing Mrs Davison’s TOIL

balance by 3 hours 10 minutes. However, the timesheet for this day told a

completely different story as it indicated that Mrs Davison had worked only 5 minutes

short of a full day. This could not be right and yet further undermined Mrs Davison’s

repeated and previously un-evidenced explanations about her use of TOIL.

The panel rejected Mrs Davison’s explanation that she was ‘playing’ with timesheets

because the timesheets had been in use for some 6-8 months by this time, and the

panel considered that a nurse of Mrs Davison’s grade, working in a supervisory

capacity over others, would have been fully capable of completing such basic

documents correctly and would only have submitted them to her manager for

approval if she had intended him and the Trust to rely on the truth and accuracy of

their contents.



not to be.




23

In interview, she stated that this was a TOIL day. There is no evidence that this was

a legitimately accrued, requested and authorized TOIL day. Mrs Davison’s timesheet

has her down as working for the Trust from 08.50-17.15 and thus accruing 15

minutes TOIL.



not to be.


Mrs Davison should have been working due to work for the Trust from 08.20-16.40

but could not do so from 13.30-16.40 because she was working for HCL.

Her calendar has Trust related activities marked down up until 7pm. Mrs Davison’s

timesheet has her down as working for the Trust from 08.45-17.45pm and thus

accruing 10 minutes TOIL. She could not have been working for the Trust for that

period as she was working for HCL. There is no evidence that she had legitimately

accrued TOIL, requested and had TOIL time authorized.



not to be.


In interview, she stated that this was a TOIL day and declared it to her colleagues. In

stark contrast to the evidence for other dates, Mrs Davison’s timesheet for this date

shows her not being on duty and using 8 hours 20 minutes TOIL. This accords with

an entry in Mrs Davison’s’ Outlook diary saying ”09.00-17.00 time owing”.

24

The panel found that on this date Mrs Davison was probably not due to work for the

Trust, and allegation 1 for this date was not proved.

7 February 2014 Mrs Davison worked for HCL from 14.30-21.00.

Mrs Davison should have been working due to work for the Trust from 08.20-16.40

but could not do so from 13.30-16.40 because she was working for HCL.

In interview, she stated she had taken TOIL. Mrs Davison’s timesheet has her down

as working for the Trust from 08.00-15.00 and having accrued 1 hour 15 minutes

TOIL. Her shift with HCL started at 14.30 which would mean she would have to leave

at 13.30 and therefore take 3 hours TOIL at the very least, rather than the 1 hour 15

minutes noted on her timesheet.

The panel considered that the amount of TOIL taken was far short of what would

have been required for her to complete her work with HCL.



not to be.

With the exception of 27 January 2014, the panel considered that on various

occasions set out in Schedule 1 Mrs Davison worked a shift or part of a shift for HCL

Workforce Solutions (“HCL”) whilst due to be on duty with the Blackpool Teaching

Hospitals NHS Foundation Trust (“the Trust”).

Accordingly, the panel finds charge 1 PROVED on all dates in Schedule 1 with the exception of 27 January 2014.

25

3. On one or more occasions submitted an incorrect mileage claim in respect of one or more of the dates in Schedule 2.

The panel noted Mrs 4’s evidence that Mrs Davison was, at all material times, on a

37.5 hours per week contract with the Trust.

Schedule 2 7 August 2013 Mrs Davison claimed £15.72 for a business journey from Freckleton to Lytham St

Annes. She was on annual leave from 6 August to 12 August 2013. This was

corroborated by a diary entry in her own Outlook calendar.

Mrs Davison’s explanation to Mr 5 was that she was on annual leave, but still made

the journey from Freckleton to Lytham St Annes. However, when questioned by the

panel, Mr 5 said that he had not enquired as to why Mrs Davison may have made

the journey.

The panel considered that, although it may be unlikely that Mrs Davison made the

journey whilst on annual leave, she was not given the opportunity to explain in what

circumstances she may have made the journey, and therefore it could not determine

that this was an incorrect mileage claim.

For the above reasons, the panel found this date NOT PROVED in relation to charge

3.

3 December 2013 Mrs Davison claimed £63.80 for a business trip from Freckleton to Lancaster to

attend a course.

Mrs Davison emailed the course coordinator on 2 December to inform her that she

would not be attending on 3 December due to ill-health. She was recorded on the

attendance list as having given her apologies.

26

Although the panel had earlier decided that Mrs Davison was probably not ill on this

date, it considered that emails between Mrs Davison and the course coordinator and

the attendance register confirmed that she did not go to Lancaster on 3 December

2013. The panel therefore considered that this was clearly an incorrect mileage

claim.

For the above reasons, the panel found this date PROVED in relation to charge 3.

4 December 2013 Mrs Davison claimed £23.42 for a business trip from Freckleton to Farington. This

was for a meeting at the Leyland MASH from 12.00-14.00.

In an email at 14.28 on 2 December 2013 Mrs Davison cancelled the meeting,

stating she was ill with a chest infection. At the time the meeting was due to take

place, Mrs Davison would have been travelling to an HCL shift at the Royal

Manchester Children’s Hospital.

Mrs Davison stated to Mr 5 that the claim was a mistake and she did not mean to

claim the mileage.

The panel considered that, for the purposes of this charge, a mistake constitutes an

incorrect mileage claim.


11 December 2013 Mrs Davison claimed £23.42 for a business trip from Freckleton to Farington and

£34.35 from Freckleton to Garstang.

She initially told Mr 5 she would have attended those places, but then acknowledged

that, as she was working for HCL from 07.30-14.00, she could not have made the

journeys.

27


13 December 2013 Mrs Davison made 3 mileage claims on this date: £19.11 for a business trip from

Freckleton to Blackpool; £19.77 from Freckleton to Broughton; and £23.52 from

Freckleton to Bamber Bridge.

Mrs Davison worked for HCL from 2.30pm-9pm that day.

Mrs Davison’s calendar showed a ‘management meeting’ in Whitegate Drive

(Blackpool). Whitegate Drive was the location of Mrs Davison’s line manager. Mr 5

told the panel that he asked the line manager about this meeting and was told that it

was cancelled. The panel considered that although the meeting was cancelled, it is

still possible that Mrs Davison made the journey to Blackpool, and the panel is not

satisfied that this was probably an incorrect claim.

Claims for the following two trips do not, from Mrs Davison’s calendar, relate to any

Trust based activity. It is not evident what the first trip was for or whether it even took

place. Mrs Davison was working for HCL in the afternoon, and so could not have

possibly made the afternoon journeys which she said was to take her work lease car

to a garage for damage assessment. This, Mr 5 explained, was not a legitimate

business claim in any event. The panel considered that Mrs Davison should not have

claimed mileage on activities which were not Trust related or that were claimed when

working for HCL, and that the mileage claims for Freckleton to Broughton and

Freckleton to Bamber Bridge were therefore made incorrectly.


7 January 2014 Mrs Davison claimed for a business trip from Freckleton to Lytham St Annes at

£15.72 and for a trip from Freckleton to Garstang at £34.35.

She was working for HCL that day from 14.30-21.00.

28

Mrs Davison stated to Mr 5 that the journey to Garstang had been cancelled and she

would not have made the journey. The panel therefore considered that Mrs Davison

admitted that this mileage claim had been made incorrectly.

Mrs Davison told Mr 5 that she would have made the journey to Lytham St Annes,

but did not remember the details of her appointment there. Although there is nothing

to identify the purpose of the purported trip to Lytham St Annes in her calendar, it

appearing as “15.30/17.00 planning meet at LSA H”. The panel noted it was timed in

the afternoon when Mrs Davison was working for HCL in Manchester, and

considered this claim was also incorrect.


3 February 2014 Mrs Davison claimed £15.72 for a business trip from Freckleton to Lytham St Annes.

She worked a shift for HCL from 14.30-21.00. Her own calendar shows her as being

off work in the morning but working in the afternoon.

Mrs Davison’s timesheet self-certified that she worked from 13.30-17.15 and accrued

3 hours 45 minutes TOIL that day.

The panel considered that, as she worked for HCL that day, the mileage claim to

Lytham St Annes is incorrect.


Accordingly, the panel finds charge 3 PROVED in respect of all dates in schedule 2 except 7 August 2013.

5. On one or more of the dates set out in Schedule 3 inaccurately recorded accrual of time off in lieu;

29

During a 12 month period, Mrs Davison submitted only four timesheets covering

May to June 2013 and January to February 2014. She did not submit other

timesheets, despite being instructed to do so on a monthly basis in emails and being

sent frequent reminders.

As Mrs Davison did not record her hours worked correctly across the year, as

required, there is no evidence to show how she had accrued TOIL. Further there is

no evidence to show she had requested or received authorization to take TOIL.

In addition to that, when she did record TOIL time she did so inaccurately.

Schedule 3 14 January 2014 Mrs Davison worked for HCL from 14.30-21.00.

She recorded in her timesheet that she worked from 08.50-17.55 for the Trust thus

accruing 15 minutes TOIL.

Despite claiming to have worked over her full day with the Trust, she worked for HCL

from 14.30-21.00. The panel therefore considered that she could not have possibly

accrued 15 minutes TOIL. Accordingly, it found that this was an inaccurate recording

of TOIL.


21 January 2014 Mrs Davison recorded in her timesheet that she worked from 08.45-17.45 and thus

accrued 10 minutes TOIL.

She worked for HCL that day from 14.30-21.00. As she did not complete her

required hours for the Trust, she cannot have accrued TOIL. The panel therefore

found that this was an inaccurate recording of TOIL.

30


3 February 2014 Mrs Davison recorded in her timesheet that she worked from 1.30pm- 5.15pm for the

Trust on a day where she would otherwise not have been working. She thus logged

that she had accrued 3 hours 45 minutes TOIL.

On this day she worked for HCL from 14.30-21.00 in Manchester. She could not

have accrued 3 hours 45 minutes of TOIL. The panel therefore considered that this

claim was an inaccurate recording of TOIL.


The panel then went on to consider charges 2, 4 and 6, which relate to dishonesty:

2. Your conduct in charge 1, above, were dishonest in that you knew you were due to be on duty with the Trust.

The panel considered whether the facts found proved in charge 1 proved dishonesty.

It noted a number of factors which suggest that Mrs Davison was being dishonest in

working for HCL whilst due to be on duty with the Trust:

• she suggested she was too ill for work to the course coordinator in emails, but

then went on to work for HCL on the same day;

• she failed to complete all timesheets, a key tool in accountability, submitting

only 4 timesheets in a 12 month period;

• she claimed that she was using TOIL when she had not requested TOIL and it

had not been authorised as required;

• she worked for HCL without seeking any authorisation from her substantive

employer.

31

The panel took into account the number of occasions on which she worked at HCL

when she was due to be working for the Trust. It considered that any reasonable

nurse would consider this to be dishonest. The panel considered that, on balance of

probabilities, she was well aware of what she was doing and was being dishonest.

Accordingly, the panel found charge 2 PROVED on the balance of probabilities.

4. Your conduct in charge 3, above, were dishonest in that you knew the mileage claims were incorrect.

In considering whether the facts found proved in charge 3 proved dishonesty, the

panel took into account that Mrs Davison:

• claimed for work mileage expenses when she was actually on annual leave

and thus not working;

• claimed for work mileage expenses when she claimed to be sick, but then

went on to work for HCL;

• claimed for mileage expenses to meetings which she had cancelled or did not

attend;

• claimed for Trust related journeys which she could not have done as she was

working for HCL.

The panel considered that Mrs Davison gave implausible and inconsistent

explanations for her actions found proved in charge 3. It considered that this formed

a pattern of dishonesty in order to procure for herself a financial gain for mileage

claims that were false. It considered that any reasonable nurse would consider this

to be dishonest. The panel considered that, on balance of probabilities, she was well

aware of what she was doing and was being dishonest.


32

6. Your conduct in charge 5, above, were dishonest in that you knew you that the time off in lieu recorded was inaccurate.

Although she did not do so often, Mrs Davison’s conduct in filling in timesheets to

state that she had accrued TOIL when she was in fact working for HCL in Trust time,

was not in the panel’s view merely “playing with” timesheets. It made it impossible for

the Trust to keep any accurate record of what Mrs Davison did for them. The errors

were blatant and must have appeared so to Mrs Davison.

The panel considered that, on the balance of probabilities, it is more likely than not

that Mrs Davison knew she was doing something she should not be doing. As a

manager in a senior position she should be aware of Trust rules and policies.


7. Knowingly submitted additional hours timesheets with a false signature for one or more of the weeks set out in Schedule 4.

This charge relates predominantly Mrs 1’s evidence. She gave evidence to the effect

that her signature was falsified on a number of dates.

Schedule 4 Week ending 28 October 2012 Mrs 1 stated that the signature ‘does not look like [her] writing’.

Week ending 6 January 2013 Mrs 1 stated: ‘this date is on a Sunday and I have never seen Mrs Davison at a

weekend. This does not look like my writing’. The panel considered that never seeing

Mrs Davison on a Sunday would link in with Mrs Davison only working Monday-

Friday with the Trust as a Team Leader. Mrs 4 gave evidence that this was the shift

pattern that the Team Leader role required.

33

Week ending 13 January 2013 Mrs 1 stated again that this was a Sunday and that it did not look like her writing. Week ending 27 January 2013 Mrs 1 stated: ‘this is not my writing. I did not see Davison on 25th of January 2013, as

I was at a CQUINN event at Fleetwood Football Club, which Mrs Davison did not

attend’. Week ending 10 February 2013 Mrs 1 told the panel: ‘it does not look like my writing. I was at a Team Leader

meeting on 13 February 2013 when it was received by Web Data Entry. I do not

recall if Mrs Davison was present at this meeting’. Week ending 17 February 2013 Mrs 1 stated: ‘the timesheet was received by Web data Entry on 13 February 2013,

but the timesheet is signed and dated on 17 February 2013. The 17th is a Sunday

and I have never seen Mrs Davison at a weekend… I would not have signed a

timesheet on a Wednesday (i.e. 13th of February 2013) for a week that ended on a

Sunday, i.e. 17th of February 2013). Week ending 17 March 2013 Mrs 1 stated: ‘I didn’t date this. This is not my writing. By my diary I did not see

Davison this week or on 18th of March 2013 when it was received by the Web Data

Entry team’. Week ending 24 March 2013 Mrs 1 stated: ‘this does not look like my writing’. Week ending 31 March 2013 Mrs 1 stated: ‘I did not sign this timesheet, as it was dated on 28th of March 2013 and

I was on annual leave from 25 March 2013 to 02 April 2013’.

34

Week ending 2 June 2013 Mrs 1 stated: ‘I did not sign this timesheet, as it was dated 31 May 2013 and I was

on annual leave for the full week commencing 27th of May 2013 and then went

straight on to sick leave’. Week ending 9 June 2013; Week ending 16 June 2013; Week ending 23 June 2013 Mrs 1 stated: ‘I can absolutely confirm that I did not sign the “additional hours”

timesheets for these dates I was on sick leave over this period and did not see Mrs

Davison’.

The panel acknowledged Mrs 1’s evidence that her signature was easy to forge and

that she could not be certain in respect of each disputed signature. However, the

panel was persuaded by the other factors identified by Mrs 1, namely the fact that

the dates accompanying the disputed signatures were definitely not written as Mrs 1

would write them and Mrs 1’s firm evidence that she would always date a signature

(meaning she could not have signed on a day she was not at work) that when Mrs 1

thought her signature was forged, she was probably correct. This led the panel, in

the absence of other explanation, to the inevitable conclusion that on the balance of

probabilities Mrs Davison had written the signatures herself. This, the panel noted,

accorded with Mrs 5’s record of an admission by Mrs Davison in her interview that

she did sometimes write Mrs 1’s signature for her- albeit she explained that this was

done with Mrs 1’s permission and that Mrs 1 did the same.


8. On or around 15 April 2013 knowingly submitted a claim for additional hours worked for which you had already claimed.

Mrs Davison submitted two claims for additional hours worked for the week ending

31 March 2013.

35

Mr 5 gave evidence that Mrs Davison submitted one claim dated 28 March 2013.

This claim purported to be counter-signed by Mrs Davison’s colleague, Mrs 1, on the

same day. It was stamped as received by the data entry team on 2 April 2013. The

second claim was dated 11 April 2013. It was not counter-signed by any manager

and, whilst covering the same period, was not identical in that it identified the Friday

as being the bank holiday (Good Friday). It was stamped by the data entry team on

15 April 2013.

The panel considered that, as this only happened once, the duplicated claim could

be explained by Mrs Davison having forgotten that she had already submitted a

claim for that date.

The panel considered that there was insufficient evidence to show that the second

claim was submitted as a knowing and intentional duplication of the first.

Accordingly, the panel found charge 8 NOT PROVED on the balance of probabilities.

9. Your conduct in charge 8, above, were dishonest in that you knew you had already claimed for the additional hours.

Having found charge 8 not proved, the panel also found charge 9 not proved.


36

The panel considered charges 10 and 12 together:

10. Between around 24 April 2015 and 7 December 2016 did not inform HCL

that you were subject to a Nursing and Midwifery Council (“NMC”) Fitness to Practise investigation (050206/2015). &

12. Between around 1 October 2014 and 7 December 2016 did not inform HCL Workforce Solutions that you were subject to an investigation by the Trust.

Mrs 3 gave evidence that the HCL Handbook required Mrs Davison to inform HCL

that she was under investigation by bodies such as her employer (the Trust) and the

NMC. She explained why this was so important for HCL in fulfilling its responsibilities

to its clients in terms of patient safety and confidence.

Mrs 3 accepted that the quote from the Handbook in her statement was from a

version of the Handbook produced after the incidents in question but said that there

had been no substantial changes to the handbook and said she was sure this

provision would have been included in the version applying to Mrs Davison at the

time.

Prior to beginning work for HCL on 6 November 2013, Mrs Davison electronically

acknowledged reading the Handbook and she affirmed this on a yearly basis

thereafter.

Following the referral from the Trust, the NMC approached HCL for information

about Mrs Davison and her working hours with them. Prior to this, HCL were not

aware that she was being investigated by the NMC (Charge 10) and/ or the Trust

(Charge 12). This was confirmed in Mrs 3’s evidence when she stated that there was

nothing in the file for Mrs Davison, which she had checked herself, to indicate that

she had self-reported this information. Therefore, from a company-wide perspective,

an individual going to the file for information on Mrs Davison would not know that she

was subject to the two investigations. More crucially, this information would not have

37

been communicated to the Royal Manchester Children’s Hospital to allow it to

undertake any appropriate risk assessment.

So far as Mrs Davison’s knowledge of the NMC’s investigation was concerned,

evidence from Ms 7 showed that Mrs Davison had had various correspondence with

the NMC regarding the ongoing investigation:

• She acknowledged receipt of a letter dated 24 April 2015 informing her of her

referral on the same day.

• In a letter dated 6 October 2015, she was made aware that her case had

been referred to the Case Examiners.

• In a letter dated 9 November 2015, she was chased for contact details and

consent for papers to be sent to her representatives.

• The NMC investigation was predicated on the investigation by the Trust.

Mrs 3 told the panel that when she asked Mrs Davison about this in a phone

conversation on 14 December 2016, Mrs Davison stated that she was ‘shocked’

because she thought the whole NMC investigation was ‘done and dusted’. The panel

noted that the NMC never informed her in correspondence, or in any other way, that

this was the case.

Consistent with the evidence of Mrs 3, the panel considered that there was nothing

from Mrs Davison to suggest that she informed HCL that she was subject to

investigation by either the NMC or the Trust, nor any explanation from her as to why

she did not inform HCL.

The panel therefore found that Mrs Davison was fully aware that she was subject to

investigation by the NMC and the Trust between 2014 and 2016, but failed to inform

HCL at the appropriate times, or at all.

Accordingly, the panel found charges 10 and 12 PROVED on the balance of probabilities.

38

The panel considered charges 11 and 13 together:

11. Your conduct in charge 10, above, was dishonest in that you wished to

conceal that you were being investigated by the NMC.

& 13. Your conduct in charge 12, above, was dishonest in that you wished to

conceal that you were being investigated by the Trust. The panel considered that the requirement to inform HCL about professional

investigations was a basic requirement. Mrs 3 gave evidence that, if Mrs Davison

had disclosed to HCL that she was under investigation by the Trust and the NMC,

HCL would have had to disclose this to their clients before they accepted her for any

further shifts.

The panel considered that Mrs Davison acknowledged the HCL Handbook and knew

that she was required to disclose that she was subject to investigation. Despite being

aware of this, she chose to conceal the information. The panel determined that, on

the balance of probabilities, she chose to conceal the information dishonestly in

order to keep her secondary employment for her own financial gain.

Accordingly, the panel found charges 11 and 13 PROVED on the balance of probabilities.

14. Between around 30 January and 24 April 2015 did not inform HCL Workforce Solutions that you had been signed off from work at the Trust.

Mrs 3 gave evidence that the HCL Handbook required Mrs Davison to inform HCL, of

‘any changes to her health situation which may affect her ability to perform her role’.

39

Mrs 3 said that Mrs Davison did nothing from 30 January to 24 April 2015 (her notice

period with the Trust) to inform HCL that she had been signed off from work or that

her health situation would affect her ability to perform her role.

Mrs 3 said she was “concerned that she had been signed off sick for her 3 month

notice period without informing HCL”. During this period she worked 346.5 hours at

HCL.

Although the panel considered Mrs 3’s evidence was credible and reliable, the panel

was not presented with evidence of a sickness certificate for this period. The only

evidence that Mrs Davison had provided a sick note was in an email correspondence

to Mrs 3 from a Workforce Business Partner at the Trust which stated: ‘Yes CD

provided a sick note to us to cover her notice period from 30 January to 24 April

2015 and this was paid notice’.

This was a serious allegation because someone who worked as a paediatric nurse

for 346 hours whilst signed off as “unfit to work” by a doctor would clearly be a

significant risk to the patients she would be caring for. The panel found the inherent

unlikelihood of this allegation to be high and had to consider the reasonable

alternative possibility, namely that the information about the sick note (or any sick

note itself) was inaccurate. In the circumstances, following the guidance in the cases

of Re B and Hosny, the panel looked for cogent evidence of this allegation. It did not

find the necessary cogent evidence because all the NMC had produced was second

hand hearsay in the form of the email to Mrs 3 from the workforce business partner.

The panel could not see why the NMC could not have produced the relevant sick

note(s) from the Trust records or first-hand evidence from the relevant workforce

business partner to explain what it/they said. On this basis the panel could not find

the allegation proved. Allegation 15 therefore could also not be proved.


40

15. Your conduct in charge 14, above, was dishonest.

Having found charge 14 not proved, the panel also found charge 15 not proved.


41

Decision on interim order and reasons: Pursuant to rule 32(5) the panel considered whether to make an interim order. Mr

Walker told the panel that no interim order was currently in place, and the NMC’s

position was neutral on the matter of an interim order.


The panel considered that the facts found proved against Mrs Davison did not

involve her clinical practice and was satisfied that an interim order was not

necessary for the protection of the public. In relation to public interest, the findings

did not reach the high bar for an order on public interest grounds alone. An order

would not be in Mrs Davison’s own interest.

That concludes this determination.

This decision will be confirmed to Mrs Davison in writing.

42

Decision on misconduct and impairment:

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

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

Davison’s fitness to practise is currently impaired by reason of that misconduct. The

NMC has defined fitness to practise as a registrant’s suitability to remain on the

register without restriction.

The panel had regard to the submissions of Ms Dongray on behalf of the NMC.

Ms Dongray submitted that Mrs Davison has breached a number of standards which

brought the nursing profession into disrepute. She invited the panel to consider the

charges in the round and find misconduct. She submitted that public confidence in

the profession would be undermined if a finding of impairment were not made. She

submitted that the public interest required a finding of impairment in this case.

The panel accepted the advice of the legal assessor who referred to the cases of

Nandi v GMC [2004] EWHC 2317 (Admin); Mallon v GMC [2007] CSIH 17; Meadow

v GMC [2007] QB 462; Cohen v GMC [2008] EWHC 581 (Admin); CHRE v (1) NMC

(2); Grant [2011] EWHC 927 (Admin); SRA v Sharma [2010] EWHC 2022 (Admin);

Parkinson v NMC [2010] EWHC 1898 (Admin)

In determining whether Mrs Davison’s fitness to practise is currently impaired, the

panel has borne in mind that this is a two stage process. It first considered whether

the facts found proved in this case amount to misconduct and, if so, whether as a

result of that misconduct, Mrs Davison’s fitness to practise is currently impaired.

The panel acknowledged that there is no burden or standard of proof at this stage of

the proceedings and that the issues of misconduct and impairment remain matters

for the independent judgment of the panel.

43

In reaching its decision the panel bore in mind its duty to protect the public, to

maintain public confidence in the profession and the regulatory process, and to

declare and uphold proper standards of behaviour and conduct.

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

on Mrs Davison’s part. This case involves 3 findings of dishonesty on 21 different

dates, and 2 further instances of dishonest conduct which extended over a period of

time.

The panel took into account the nature of the failings. It considered that Mrs Davison

was deliberately dishonest to her employers in order to deceive for her own financial

gain. The panel took into account the repetitive and pre-meditated nature of Mrs

Davison’s actions, and considered that any nurse or member of the public would

view these actions as simply unacceptable. The panel considered that Mrs Davison’s

failings fell seriously short of what is expected of a registered nurse.

The panel considered that Mrs Davison’s actions breached both the 2008 Code (The

code: Standards of conduct, performance and ethics for nurses and midwives) and

the 2015 Code (The code: Professional Standards of Practice and Behaviour for

nurses and midwives) (“the Code”) which were in force during the period covered by

the charge. It considered the following part of the 2008 Code had been breached:

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

profession.

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

It considered that paragraph 20.2 of the 2015 Code (to “act with honesty and

integrity at all times”) had been breached by the dishonesty in concealing the NMC

and Trust investigations from an agency, showing a lack of the personal integrity

needed from a registered nurse to promote professionalism and trust and uphold the

reputation of the nursing profession to both fellow practitioners and to the public.

44

The panel was aware that not every act falling short of what would be proper in the

circumstances, and not every breach of the Code, would be sufficiently serious that it

could properly be described as misconduct. However, there are basic rules and

standards ordinarily required to be followed by a registered nurse. The panel was

satisfied that Mrs Davison’s acts and omissions fell far below the standard expected

of a professional nurse and were sufficiently grave to amount to misconduct.

The panel then went on to consider whether by reason of her misconduct Mrs

Davison’s fitness to practise is currently impaired. The panel reminded itself that it

should consider not only any risk that a registrant poses to members of the public,

but also the wider public interest in upholding proper professional standards and

public confidence in the NMC as a regulator, and whether those aims would be

undermined if a finding of impairment were not made in the circumstances however

competent Mrs Davison might be today in clinical nursing situations.

The panel reminded itself of the guidance of Mrs Justice Cox in Council for

Healthcare Regulatory Excellence v. NMC and Paula Grant [2011] EWHC 927

(Admin), adopting the test proposed by Dame Janet Smith in the Shipman enquiry:

“Do our findings of fact in respect of the doctor’s [nurse’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 to act in the future 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 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 profession; and/or

45

d) has in the past acted dishonestly and/or is liable to act dishonestly in the

future.”

This case does not concern Mrs Davison’s clinical nursing practice. The panel

considered that limbs (b), (c), and (d) of the test were satisfied in this case. It had

regard to whether Mrs Davison’s misconduct was easily remediable, whether it had

been remedied and whether it is highly unlikely to be repeated. Dishonesty of a

serious and repeated nature is difficult to remedy. The panel noted that Mrs Davison

has not engaged with NMC proceedings throughout. She has not acknowledged any

failings to this panel and has not demonstrated any remorse or shown attempts to

remediate. The panel noted the dishonesty was repeated and spanned a prolonged

period of time. It noted that Mrs Davison was a Senior Nurse in a position of authority

over more junior members of staff. The panel considered that her misconduct was of

a serious nature, and repeated on numerous occasions. The panel was therefore not

satisfied that Mrs Davison’s misconduct had been remediated.

The panel decided that Mrs Davison’s behaviour seriously undermined the trust and

confidence the public has in the nursing profession. For all these reasons, the panel

determined that 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 circumstances, in order that an appropriate sanction could be imposed

to mark the disapproval of the panel, on behalf of the public, of Mrs Davison’s

actions.

Accordingly the panel determined that Mrs Davison’s current fitness to practise is

impaired by reason of her misconduct on public interest grounds.

46

Determination on sanction:

Having determined that Mrs Davison’s fitness to practise is impaired, the panel has

considered what sanction, if any, it should impose. In reaching its decision, the panel

has considered all the evidence provided, together with Ms Dongray’s submissions

on behalf of the NMC.

The panel accepted the advice of the legal assessor who referred to the cases of:

CHRE v NMC and Leeper, [2004] EWHC 1850 (Admin); Parkinson v NMC [2010]

EWHC 1898 (Admin); Moijueh v NMC [2015] EWHC 1999 (Admin).

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

striking-off order. This directs the registrar to strike Mrs Davison off the register. The

effect of this order is that the NMC register will show that she has been struck-off the

register.

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, in particular, the Revised Guidance on dishonesty published in July

2017. It had regard to the need to protect the wider public interest. It recognised that

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

judgement.

Before making its decision on the appropriate sanction, the panel established the

aggravating and mitigating features in Mrs Davison’s case.

The panel considered the aggravating features to be:

• this case involves dishonesty in the workplace; a breach of a fundamental

tenet of the nursing profession

• the dishonesty was not an isolated event, but was planned and occurred on

numerous occasions and over a prolonged period of time

• the dishonesty involved financial loss to the NHS

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• Mrs Davison was an experienced nurse in a management position, and

should have been a role model to junior staff. She would have been familiar

with the standards expected of her

The panel found no mitigating features in this case.

Although the panel noted that some personal mitigating features had been

suggested to the Trust in its investigation, no such mitigation was in evidence before

this panel. In any event, personal mitigation carries less weight in regulatory

proceedings than it might do in other forums.

The panel acknowledged that the shifts which Mrs Davison worked for HCL whilst

due to be on duty with the Trust, involved working in an acute ward at a Children’s

Hospital. The panel did not consider that this either mitigated or aggravated the

fundamental issues of dishonesty in this case.

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

inappropriate. The public interest required action to be taken.

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

Mrs Davison’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 not be in the public interest to impose a caution order.

The panel next considered whether placing conditions of practice on Mrs Davison’s

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

that any conditions imposed must be proportionate, measurable and workable. The

panel was of the view that there are no practical or workable conditions that could be

formulated, given the non-clinical nature of the facts found proved in this case. The

48

panel concluded that placing conditions on Mrs Davison’s registration would not

adequately address the seriousness of this case.

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

appropriate sanction. The panel noted that Mrs Davison’s misconduct was serious

and that her behaviour had brought the reputation of the profession into disrepute

and breached fundamental tenets of the profession. This case involves Mrs Davison

intentionally and repeatedly deceiving her employer for her own financial gain.

The panel considered that Mrs Davison has demonstrated no insight into the events.

It found that her actions were dishonest, pre-meditated, and repeated. Mrs Davison’s

conduct was a significant departure from the standards expected of a registered

nurse and a serious breach of the fundamental tenets of the profession. The panel

considered that her repeated dishonesty, apparent deep seated attitudinal problems,

and lack of insight or remorse are fundamentally incompatible with her remaining on

the register. Balancing all of these factors, the panel has determined that a

suspension order would not be a proportionate sanction.

The panel considered whether a striking-off order would be appropriate in Mrs

Davison’s case. The panel has a duty to uphold proper standards of conduct. The

panel was of the view that the findings in this particular case demonstrate that her

actions were serious and to allow her to continue practising would undermine public

confidence in the profession and in the NMC as a regulatory body. The panel

therefore concluded that a striking-off order was the only sanction which would send

a clear message to the public and the profession about the standard of honesty and

integrity required of a registered nurse in order to maintain public confidence in the

profession.

The panel determined to impose a striking-off order.

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Decision on interim order and reasons:

The panel has considered the submission made by Ms Dongray, on behalf of the

NMC, that an interim suspension order for a period of 18 months should be made on

the grounds that it is in the public interest.

The panel accepted the advice of the legal assessor who referred to the case of R

exp Shiekh v GDC [2007] EWHC 2972.

The panel noted that article 29(5) of the Order gave the registrant a right of appeal

and that Article 29(11) gave her a further statutory right, namely delaying the effect

of the panel’s order pending specific decisions in the appeal process.

Under Article 31 there is a power to impose an interim order of suspension during

any appeal process, but this power arises only if doing so is (a) necessary for the

protection of the public (b) otherwise in the public interest, or (c) in a registrant’s own

interest. The panel determined that neither ground (a) nor ground (c) would apply in

this case. The panel therefore asked itself if there were a public interest (which it

noted from the case of Shiekh needed to be a high public interest) in denying the

registrant her statutory entitlement under Article 29(11). There are undoubtedly many

types of case where a striking off on public interest grounds alone would justify this

course. However, the panel felt that Mrs Davison’s actions, whilst undoubtedly

serious, were not so serious that the public interest required that she be deprived of

her statutory rights under Article 29(11). In reaching this conclusion, the panel

reminded itself of its overarching duty under Article 3(4) which is “the protection of

the public”, and was satisfied that its decision, in the particular circumstances of this

case, where no risk of harm to the public was established, was fully compatible with

this duty.

That concludes this determination.

This decision will be confirmed to Mrs Davison in writing.

Fitness to Practise Committee Substantive Hearing 20-21 … · 2017. 11. 23. · 1 Fitness to...

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Transcript of Fitness to Practise Committee Substantive Hearing 20-21 … · 2017. 11. 23. · 1 Fitness to...