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Conduct and Competence Committee Substantive Hearing

26 – 30 June 2017 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ

Name of Registrant Nurse: Mr Mohammed Sinneh Kamara NMC PIN: 00C2578E Part(s) of the register: RNMH, Registered Nurse (Sub Part 1) Mental Health – April 2004 Area of Registered Address: England Type of Case: Misconduct Panel Members: Jane Kivlin (Chair Registrant member)

Anne Witherow (Registrant member) Paul Pharaoh (Lay member)

Legal Assessor: Robin Ince Panel Secretary: Caroline Pringle Mr Kamara: Present and represented by Abbey Akinoshun,

ERRAS Nursing and Midwifery Council: Represented by Daniel Brown, counsel, NMC

Regulatory Legal Team Facts proved: 2, 3, 5, 6(i), 6(ii) and 7 Facts proved by admission: 1, 4(i) and 4(ii) Facts not proved: 8 and 9 Fitness to practise: Impaired Sanction: Striking off order Interim Order: Interim suspension order (18 months)

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Details of charge

That you, a registered nurse:

1. In your application for the role of nurse at East London Foundation Trust (ELFT),

dated 20 March 2009, you did not disclose your dismissal from South London and

Maudsley NHS Foundation Trust (SLAM); [found proved by admission]

2. During your interview for the role of nurse at ELFT, on or around 31 March 2009,

you did not disclose dismissal from SLAM; [found proved]

3. Your actions in charge 1 and/or 2 above were dishonest, in that you were

attempting to conceal the fact that you had been dismissed from SLAM; [found proved]

4. In your application form dated 12 April 2010, for the role of band 6 Community Mental

Health nurse at ELFT you:

i) Did not disclose your dismissal from SLAM; [found proved by admission]

ii) Stated that your reason for leaving SLAM was for a career break; [found proved by admission]

5. Your actions in charge 4(i) and/or 4(ii) were dishonest, in that you were attempting to

conceal the fact that you had been dismissed from SLAM; [found proved]

6. Whilst working at ELFT you:

i) Did not disclose that you were under investigation by the NMC from 5 July

2012; [found proved]

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ii) Did not disclose that you had received a three year caution order from the

NMCs Conduct and Competence Committee effective from 28 May 2013;

[found proved]

7. Your actions in charge 6 above were dishonest, in that you were attempting to

conceal the investigation as set out in 6(i) and/or the caution order as set out in 6(ii);

[found proved]

8. During the disciplinary meetings with ELFT in respect of your failures to disclose the

NMC proceedings and caution you provided false information, in that you:

i. Stated you were on a 6 month career break in Sierra Leone until 12

December 2008, when in fact you were present at an appeal against your

dismissal from SLAM on 16.10.08; [found not proved]

9. Your actions as described in charge 8 above were dishonest in that you knew you

were providing false information; [found not proved]

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

misconduct.

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Decision and reasons on application to admit written witness statement into evidence pursuant to Rule 31 The panel heard an application made by Mr Brown under Rule 31 of the Rules to allow

the written statement of Mr 3 into evidence. Mr Brown submitted that, as Mr 3’s

statement simply exhibits documents, the NMC did not intend to call him as a live

witness.

Mr Akinoshun indicated that he was aware of the NMC’s decision not to call Mr 3 as a

live witness and did not object to the application to have his written statement read into

the record.

The panel heard and accepted the legal assessor’s advice on the issues it should take

into consideration in respect of this application. This included that Rule 31 provides that,

so far as it is ‘fair and relevant,’ a panel may accept evidence in a range of forms and

circumstances, whether or not it is admissible in civil proceedings.

The panel gave the application in regard to Mr 3 serious consideration. The panel noted

that Mr 3’s statement had been prepared in anticipation of being used in these

proceedings and contained the paragraph ‘This statement … is true to the best of my

information, knowledge and belief’ and was signed by him.

The panel considered whether you would be disadvantaged by not having Mr 3 attend

to give live evidence. The panel noted that the content of Mr 3’s statement was not in

dispute and simply exhibited documents. It also took account of the fact that Mr

Akinoshun, on your behalf, did not object to the application.

In these circumstances, the panel came to the view that Mr 3’s statement was relevant

and that it would be fair to accept it into evidence but would give what it deemed

appropriate weight once the panel had heard and evaluated all the evidence before it.

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Decision and reasons on application to hear evidence via WebEx pursuant to Rule 31

The panel heard an application made by Mr Brown for a witness, Ms 2, to give evidence

via WebEx. He informed the panel that Ms 2 was originally going to give live evidence;

however she has now been required to give evidence this week at an Employment

Tribunal and is therefore not able to attend this hearing on either Monday or Tuesday.

Mr Akinoshun, on your behalf, did not object to this application.

The panel heard and accepted the legal assessor’s advice on the issues it should take

into consideration in respect of this application. This included that Rule 31 provides that,

so far as it is ‘fair and relevant,’ a panel may accept evidence in a range of forms and

circumstances, whether or not it is admissible in civil proceedings.

The panel decided to allow the application. It considered that the witness had a good

reason for not attending this hearing and that it would cause no prejudice to you or the

NMC to allow her to give evidence via WebEx. The panel noted that questions could still

be put to the witness and the video link would allow the panel to observe her behaviour

and demeanour which would assist it in testing her evidence and assessing her

credibility.

Accordingly, the panel decided to allow the application for Ms 2 to give evidence via

WebEx.

Decision and reasons on application under Rule 19 During your evidence at the facts stage Mr Akinoshun made a request that parts of the

hearing of your case be held in private on the basis that proper exploration of your case

involves your health and the health of a family member.

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Mr Brown indicated that he supported the application to the extent that any reference to

your health, or any family member’s health should be heard in private. The legal

assessor reminded the panel that while Rule 19 (1) provides, as a starting point, that

hearings shall be conducted in public, Rule 19 (3) states that the panel may hold

hearings partly or wholly in private if it is satisfied that this is justified by the interests of

any party or by the public interest.

Having heard that there will be reference to your health and a family member’s health,

the panel determined to hold such parts of the hearing in private. The panel determined

to rule on whether or not to go into private session in connection with your health and a

family member’s health as and when such issues were raised.

Background You were referred to the NMC on 18 December 2015 by East London NHS Foundation

Trust (‘ELFT’).

You had previously been employed by South London and Maudsley NHS Foundation

Trust (“SLAM”) from 24 May 2004. However, you were dismissed by SLAM on 25 June

2008 for gross misconduct. You appealed against your dismissal from SLAM but the

decision to dismiss you was upheld. You were informed of this by letter dated 26

November 2008. You also brought a claim of unfair dismissal against SLAM in the

Employment Tribunal. This claim was heard from 27 – 29 April 2009 and the Tribunal

held that you had not been unfairly dismissed.

On 20 March 2009 you applied for a job as a bank nurse working for ELFT. It is alleged

that, on the application form, you mislead ELFT by indicating that you were still

employed by SLAM and had not been dismissed. It is further alleged that you failed to

disclose this information during your interview for this role. Your application was

successful and you started working for ELFT as a bank nurse.

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In April 2010 you applied for a full time role at ELFT as a band 6 Community Mental

Health Nurse. It is alleged that you again failed to disclose that you had been dismissed

by SLAM on your application form for this position.

On 4 April 2011 you were convicted of drink driving and were subsequently referred to

the NMC by the police. The NMC investigated this matter and, on 22 April 2013, a panel

of the Conduct and Competence Committee imposed a 3 year caution order upon your

registration, effective from 28 May 2013. It is alleged that you failed to disclose the fact

of the NMC investigation and the resulting three year caution order to ELFT and that

this failure was dishonest. In 2014 ELFT became aware of the NMC investigation and

resulting caution order and you were subject to local disciplinary meetings. During these

meetings you allegedly stated that you were on a 6 month career break in Sierra Leone

until 12 December 2008. However it is alleged that you provided this information falsely

and dishonestly in that you were in fact present at an appeal against your dismissal

from SLAM on 16 October 2008.

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 Brown, on behalf of the NMC and

those made by Mr Akinoshun on your behalf.

The panel accepted the advice of the legal assessor. This included reference to

Twinsectra Ltd v Yardley [2002] UKHL 12 and the test of dishonesty set out in this case.

He further advised the panel on the appropriate approach to adopt when considering

what weight to attach to hearsay evidence.

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.

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The panel heard live oral evidence from Ms 1, HR Advisor at ELFT, called on behalf of

the NMC. It also heard evidence via WebEx from Ms 2, Head of Employee Relations at

SLAM. The written statement of Mr 3, NMC Case Officer, was read into the record by

Mr Brown.

Ms 1 gave evidence regarding the HR policies and procedures in place at ELFT. She

had no direct contact with you and her involvement in this case was limited to reviewing

the information available in your HR records. The panel found her evidence to be clear.

She did not attempt to speculate or speak outside of her direct knowledge and readily

admitted when she was unsure of information. For these reasons the panel found her to

be a credible and reliable witness, although it acknowledged that she was unable to

offer many details regarding your case, given her limited involvement.

Ms 2 gave evidence that most of the documentation relating to your employment at

SLAM had been destroyed as you had left the Trust over six years ago. Her evidence

was unchallenged and, as such, the panel had no reason to doubt her credibility,

although it again acknowledged the limited scope of her evidence in relation to the

charges.

The panel also heard evidence from you under oath.

You outlined your career history for the panel. You explained that you had previously

had a career in academia in Sierra Leone before studying in Germany and then moving

to the UK, where you re-trained as a nurse. You qualified in 2004, having completed

your training at ELFT. You then took up a position at SLAM.

You told the panel that, in April 2008, you were accused of allegations which ultimately

led to a disciplinary hearing following which you were summarily dismissed for gross

misconduct. You were informed of this by letter dated 24 June 2008. You appealed this

decision but, on 26 November 2008, you were informed that your appeal had been

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unsuccessful and the decision to dismiss you was upheld. However, the appeal panel

did conclude that you had been guilty only of misconduct, not gross misconduct, and

therefore reinstated your rights to payment in lieu of notice. You then filed a claim for

unfair dismissal in the Employment Tribunal which was heard from 27 – 29 April 2009.

The tribunal held that you had not been unfairly dismissed. You told the panel that you

thought that, whilst you had appeals outstanding, the dismissal would not take effect

and you still had an employment relationship with SLAM. You said that you now

understood that not to be the case but, at the time, you were “naïve” and had “limited

knowledge of the process”.

In relation to charges 6 and 7, you gave evidence that you assumed ELFT were aware

of the referral, because you had originally thought it was ELFT that had referred you.

Further, when requested, you had provided details of your line manager, Ms 4, to the

NMC and therefore assumed that the NMC would have notified her. You told the panel

that you discovered this was not the case on 5 February 2013, when you had to request

time off from work to attend a medical examination as part of the NMC investigation.

You were then on annual leave from 13 April 2013 to 11 May 2013, during which time

you returned to Sierra Leone to [PRIVATE]. On your return to the UK you said that you

just wanted to focus on getting back to work and therefore did not open the letters which

had been delivered in your absence. You were therefore unaware of the NMC Conduct

and Competence Committee’s decision to impose a 3 year caution order on your

registration, notification of which had been sent to you by the NMC’s letter dated 29

April 2013.

The panel found you to be an emphatic witness but did not consider your evidence to be

wholly reliable. You gave very lengthy answers but they sometimes lacked the details

and depth that was required. Further, although your explanation for your actions was

consistent, namely that you believed you still had an ongoing employment relationship

with SLAM until the appeal process had been completed, the panel was of the view that

you maintained the same explanation so persistently and tenaciously, even when it did

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not explain the charges facing you, that this somewhat undermined your credibility and

reliability as a witness.

At the start of this hearing you admitted charges 1 and 4 in their entirety;

1. In your application for the role of nurse at East London Foundation Trust (ELFT), dated 20 March 2009, you did not disclose your dismissal from South London and Maudsley NHS Foundation Trust (SLAM);

4. In your application form dated 12 April 2010, for the role of band 6 Community Mental Health nurse at ELFT you:

i) Did not disclose your dismissal from SLAM; ii) Stated that your reason for leaving SLAM was for a career break;

These were therefore announced as proved.

The panel then went on to consider the remaining charges.

The panel considered each charge and made the following findings:

2. During your interview for the role of nurse at ELFT, on or around 31 March

2009, you did not disclose dismissal from SLAM This charge is found proved.

In reaching this decision, the panel took account of your evidence and the evidence of

Ms 1. You told the panel that the interview at ELFT on 31 March 2009 was focused on

your nursing skills, knowledge and experience and you were not asked about your

reasons for leaving SLAM. You told the panel that, had you been directly asked, you

would have been honest, but you were not asked the question. Ms 1 confirmed that it

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was not usual practice to ask interviewees if they had been dismissed from previous

employment unless there were issues disclosed on their application form which

prompted further exploration at interview. Interviewees were, however, offered an

opportunity at the end of an interview to ask questions or proffer any other information

which they felt was relevant to their application.

Nevertheless, the panel was of the view that nurses have a duty to act openly at all

times, as enshrined in the NMC Code of Conduct (“the Code”). This created a duty for

you to disclose your dismissal from SLAM at your interview with ELFT having not

declared this on your application form, notwithstanding the fact that you were not

directly asked about this. You admitted in your evidence that you did not inform ELFT at

your interview on 31 March 2009 that you had been dismissed from SLAM and

therefore failed in this duty.

Accordingly, charge 2 is found proved.

3. Your actions in charge 1 and/or 2 above were dishonest, in that you were

attempting to conceal the fact that you had been dismissed from SLAM; This charge is found proved.

The panel first considered charge 1 and asked itself (1) would your actions be

considered dishonest by the standards of ordinary reasonable people and (2) did you

realise that your actions were dishonest by those standards.

The panel considered that ordinary reasonable people would think that completing an

application form in March 2009 to give the impression that you were still working for

SLAM, when in fact you had been dismissed and had not physically worked a shift there

since June 2008, was deliberately misleading and dishonest. It further noted that the

application form contained a declaration of truth which confirmed that “The information

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in this form is true and complete. I agree that any deliberate omissions, falsification or

misrepresentation in this application form will be grounds for rejecting this application or

subsequent dismissal by the organisation”.

The panel then moved on to consider whether you realised that your actions were

dishonest by those standards. You told the panel in your oral evidence that, although

you were dismissed from SLAM on 25 June 2008, at the time of making your application

to ELFT in March 2009 you were still awaiting the outcome of the proceedings you had

brought in the Employment Tribunal for unfair dismissal. You told the panel that it was

your understanding that the dismissal from SLAM would not take effect until the

proceedings in the Employment Tribunal concluded and therefore you thought you were

still in a contractual employment relationship with SLAM. You said this was the reason

that you put your dates of employment at SLAM as “24/05/2004” to “present” and that it

had not been your intention to mislead ELFT or hide the fact of your dismissal.

The panel considered your evidence but had regard to the letter from SLAM dated 24

June 2008 informing you that you had been summarily dismissed with immediate effect

and the letter dated 26 November 2008 informing you that your appeal had been

unsuccessful and the decision to dismiss you was upheld. It was of the view that these

letters left no doubt that you had been dismissed from SLAM and it did not find your

explanation of naivety or lack of knowledge of the process to be plausible. It had further

regard to the fact that you lodged a claim for unfair dismissal with the Employment

Tribunal and accepted the submissions of Mr Brown that, in order for you to lodge a

claim of unfair dismissal, you must first have realised and accepted that you had been

dismissed. Finally, the panel noted the fact that in the “reason for leaving” box on the

application form you had written “To further experience at your institution” and had

made no reference to the disciplinary proceedings at SLAM or your dismissal.

Having regard to the above, the panel did not think it plausible that you were so naïve

as to believe you were still employed by SLAM in light of the letters of dismissal. It was

therefore of the view that writing “present” on your application form was a deliberate

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attempt to mislead ELFT and hide the fact of your dismissal which you must have

known was dishonest. It also considered that, even if you had been of the mistaken

belief that a contractual relationship still existed between you and SLAM, your reason

for leaving was not “to further experience at your [ELFT] institution” and therefore this

representation was also a dishonest attempt to conceal the fact that you had been

dismissed from SLAM.

The panel therefore determined that your actions in relation to charge 1 were dishonest

in that you were attempting to conceal the fact that you had been dismissed from SLAM.

The panel then considered if your actions in relation to charge 2 were dishonest. It was

of the view that ordinary reasonable people would think that, having not disclosed

dismissal from a previous employer on an application form, perpetuating this

misrepresentation at interview would be considered dishonest.

You acknowledged, in cross-examination, that nurses had a duty to act openly and

honestly. The panel therefore concluded that, notwithstanding the fact that you were not

directly asked about your reasons for leaving SLAM at your interview on 31 March

2009, you knew you had a duty to be open and honest and therefore must have known

that you were acting dishonestly when you did not inform the interview panel that you

had been dismissed from SLAM.

The panel therefore determined that your actions in relation to charge 2 were also

dishonest.

Accordingly, the panel finds charge 3 proved in its entirety.

5. Your actions in charge 4(i) and/or 4(ii) were dishonest, in that you were attempting to conceal the fact that you had been dismissed from SLAM;

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This charge is found proved.

The panel noted that at the start of this hearing you admitted charges 4(i) and 4(ii),

namely that you had not disclosed your dismissal from SLAM on your application form

for the role of band 6 Community Mental Health Nurse at ELFT in April 2010 and had

stated that your reason for leaving SLAM was for a career break. However you denied

charge 5, namely that your actions in this respect were dishonest.

The panel first considered charge 5 as it related to charge 4(i) and asked itself if your

actions would be considered dishonest by the ordinary standards of reasonable honest

people. The panel had regard to its decision and reasons set out in charge 3 and

concluded, for the reasons set out above, that this would be considered dishonest.

The panel then considered if you knew you were acting dishonestly. In evidence you

gave the same explanation as you had for charges 1, 2 and 3, namely, that you thought

that an employment relationship had persisted between you and SLAM. Again the panel

had regard to its earlier findings in charge 3 and concluded that you must have known

that you were acting dishonestly when you did not disclose your dismissal from SLAM

on the application form dated 12 April 2010. The panel also noted that, by April 2010,

the Employment Tribunal proceedings had concluded and your claim for unfair

dismissal had not been upheld. The panel considered that this added further weight to

its earlier findings in that, by 12 April 2010, you could have been in no doubt at all that

you had been dismissed from SLAM.

The panel therefore determined that by not disclosing your dismissal from SLAM on the

application form dated 12 April 2010 for the role of band 6 Community Mental Health

Nurse you were acting dishonestly.

The panel next considered charge 5 as it related to charge 4(ii). On the application form

dated 12 April 2010 you stated your reason for leaving SLAM as a “career break” not

because you had been dismissed. The panel was of the view that reasonable honest

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people would think this was dishonest as it created the impression that you had left

SLAM voluntarily, as opposed to being dismissed, which may have an effect on a

potential employer’s decision to offer you a job.

The panel had regard to your oral evidence in relation to this charge. You said, following

SLAM’s decision to dismiss you, you informed them by letter that you would be

appealing the decision to dismiss you. You stated that in this letter you also requested a

career break. You did not receive confirmation of the career break from SLAM but

assumed it had been approved as the appeal against your dismissal was considered.

When questioned, you said that you had requested the career break so that SLAM

could stay in touch with you during the appeal process. The panel was of the view that

your understanding of the nature of a career break was somewhat at odds with the

understanding of the panel but, nevertheless, by the time you completed the application

form in April 2010, you could have been in no doubt that you had been dismissed from

SLAM and therefore to describe the gap in your employment history as a ‘career break’

was deliberately misleading and dishonest.

Accordingly, the panel finds charge 5 proved in its entirety.

6. Whilst working at ELFT you:

i) Did not disclose that you were under investigation by the NMC from 5 July 2012;

This charge is found proved. In reaching this decision the panel had regard to your evidence and the correspondence

from ELFT dated 5 February 2013 and 20 October 2014. You told the panel in oral

evidence that you had originally been unaware of the NMC investigation in 2012

because you were in Sierra Leone at the time and therefore did not receive the NMC’s

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letter of 5 July 2012 advising you of it. However, your cousin was staying at your UK

address and did inform you of the investigation. You made contact with the NMC by

telephone in September 2012 while you were still in Sierra Leone to indicate that you

would engage with it on your return to the UK and, following your return to the UK on 5

October 2012, provided written submissions in January 2013. You told the panel that on

5 February 2013 you were contacted by the NMC and asked to undergo a blood test

that day. You were at work and therefore had to request time off from your manager, Ms

4. It was your evidence that you believed she was already aware of the NMC’s

investigation, assuming that it had been ELFT that had referred you. Furthermore, in

your written response to the NMC in January 2013 you had provided details of your

employer and line manager, as requested, on the assumption that the NMC would

contact/notify them. However, it was your evidence that Ms 4 confirmed that it was not

ELFT that had referred you and that she was unaware of the investigation. You told the

panel that, at this stage, you told Ms 4 about the investigation and she gave you

permission to leave the ward for two hours, signing your absence off as time in lieu.

However, the panel noted that the account you gave in your oral evidence differed from

the summary of events in the outcome letter of your disciplinary hearing, dated 20

October 2014. In the disciplinary hearing your account of events was that the call you

received on 5 February 2013 was the first contact you had from the NMC and, until this

point, you had been unaware of the investigation. The panel noted that you did not

challenge the accuracy of this summary of your evidence given at that hearing.

The panel also had regard to the letter dated 5 February 2013 which summarises a

meeting between you and Ms 4 on that date. In paragraph 4 of the letter Ms 4 writes

“We also discussed your medical examination this afternoon which has been arranged

via the NMC, thank you for advising me of this”. The panel considered that this may be

evidence that you informed her that you needed to attend an examination but does not

provide evidence that you fully disclosed the extent of the NMC investigation. This view

was further supported by the disciplinary hearing outcome letter, dated 20 October

2014, which reports that Ms 4 said “the conversation in which you requested time off on

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5th February 2013 was very short and she did not consider that this constituted

informing your employer of the NMC investigation…She did not recall you mentioning

that the medical examination has been commissioned by the NMC but the letter she

wrote to you on the same day does refer to the NMC. [Ms 4] made it very clear that she

was very disappointed and angry that you had not informed her or any other Manager of

the NMC investigation or its outcome.”

The panel was mindful that this evidence was hearsay and had not been tested by

cross-examination. However, it considered that the variation in the accounts given by

you to the ELFT disciplinary panel in 2014 and to the panel at this hearing cast

significant doubt over the reliability and credibility of your evidence in this regard. The

panel therefore placed greater reliance on the evidence which was recorded as having

been given by Ms 4 in the disciplinary hearing (and which summary was again not

challenged by you) and so determined that whilst working at ELFT you did not disclose

that you were subject to an NMC investigation from 5 July 2012.

Accordingly, charge 6 (i) is found proved.

ii) Did not disclose that you had received a three year caution order from the NMCs Conduct and Competence Committee effective from 28 May 2013;

This charge is found proved.

In reaching this decision, the panel had regard to your oral evidence. You told the panel

that you were unaware that the NMC had imposed a caution order on your registration

and therefore admitted that you did not inform ELFT.

Accordingly, charge 6 (ii) is found proved.

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7. Your actions in charge 6 above were dishonest, in that you were attempting to

conceal the investigation as set out in 6(i) and/or the caution order as set out in 6(ii);

This charge is found proved.

The panel first considered if, by the ordinary standards of reasonable honest people,

your actions were dishonest. The panel was aware that the NMC Code of Conduct

places a duty on nurses to be open and honest and to inform their employer if they

become the subject of a fitness to practise investigation. The panel was therefore

satisfied that not disclosing that you were under investigation by the NMC from 5 July

2012 was objectively dishonest.

The panel then considered if you knew your actions were dishonest by those standards.

The panel had regard to your evidence that you thought ELFT was already aware of the

investigation; however, it also noted that you admitted in cross-examination that you

have always been aware of the Code’s requirement to be open and honest and you

agreed that you had a duty under the Code to inform your employer of the investigation.

The panel was therefore satisfied that by failing to disclose that you were under

investigation by the NMC you knew that you were acting dishonestly by not revealing

that your regulator was considering your fitness to practise, which in turn might have

affected your employment with ELFT.

The panel then moved on to consider if your actions in relation to charge 6 (ii) were

dishonest. As for charge 6 (i), the panel was satisfied that the duty to disclose NMC

caution orders and other sanctions to employers was enshrined in the Code. The panel

concluded that failure to do this would be considered dishonest by the ordinary

standards of reasonable honest people.

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The panel took account of your evidence in relation to this charge. You told the panel

that you did not disclose the caution order to your employer because you were not

aware of it yourself. You had been in Sierra Leone dealing with difficult family

circumstances when the NMC meeting took place on 22 April 2013 and, upon your

return to the UK, you just wanted to focus on returning to work. You therefore ignored

the post that had been delivered in your absence and, as such, did not open or read the

letter informing you that you had received a 3 year caution order. You said that you only

became aware of the caution order on 1 April 2014 when Ms 4 informed you that

ELFT’s HR department had discovered it. You said that you then went straight home

and opened the letter.

The panel was mindful that to act dishonestly requires knowledge. It had careful regard

to your assertion that you were unaware of the caution but decided that your

explanation was not credible. It did not find it plausible that, knowing you were subject to

an NMC investigation and were awaiting the outcome, you would ignore your post for

almost a year. The panel found it more likely that you knew of the caution but were

apprehensive about its impact on your employment and therefore knowingly and

dishonestly did not inform ELFT.

Accordingly, charge 7 is found proved in its entirety.

8. During the disciplinary meetings with ELFT in respect of your failures to

disclose the NMC proceedings and caution you provided false information, in that you:

i. Stated you were on a 6 month career break in Sierra Leone until 12

December 2008, when in fact you were present at an appeal against your dismissal from SLAM on 16.10.08

This charge is found NOT proved.

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In reaching this decision, the panel noted that the only evidence offered by the NMC

relating to the disciplinary meetings with ELFT was the summary letter dated 20

October 2014. This letter makes no reference to your career break or the information

you provided during the disciplinary meetings regarding this. Therefore the panel

determined that the NMC had not provided sufficient evidence to prove, on the balance

of probabilities, that during the disciplinary meetings with ELFT in respect of your

failures to disclose the NMC proceedings and caution, you provided false information in

that you stated you were on a 6 month career break in Sierra Leone until 12 December

2008, when in fact you were present at an appeal against your dismissal from SLAM on

16 October 2008.

Accordingly, charge 8 is found not proved.

9. Your actions as described in charge 8 above were dishonest in that you knew

you were providing false information;

This charge is found NOT proved.

In light of the panel’s decision that there was insufficient evidence to find charge 8

proved, it follows that charge 9 is not capable of proof.

Accordingly, charge 9 is found not proved.

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 your fitness to

practise is currently impaired. The NMC has defined fitness to practise as a registrant’s

suitability to remain on the register unrestricted.

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The panel heard further evidence from you at this stage. You said that you accepted its

findings in relation to the facts and that you took full responsibility for your actions and

omissions. You said you now understand you have a responsibility to be open with your

employers and felt “stupid” and “foolish” that you had not done so before. You said that,

knowing what you do now, you would act differently, and you understood the negative

impact your actions and omissions had on your colleagues and on the reputation of the

nursing profession.

You explained that you were currently employed by the London School of Economics as

a mental health advisor. You said that you had been fully open with your employer

regarding your employment history and criminal convictions and have kept them

informed regarding the progress of these proceedings. You confirmed that there have

been no further concerns regarding your clinical practice or your honesty and integrity.

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

amounted to a breach of The Code: Standards of conduct, performance and ethics for

nurses and midwives 2008 (“the Code”). He then directed the panel to specific

paragraphs and identified where, in the NMC’s view, your actions amounted to

misconduct.

Mr Brown 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.

He then moved on to the issue of impairment. He submitted that this was not a case

which raised public protection concerns but that the panel should have regard to

protecting 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. Mr Brown referred the panel to the cases of Council for Healthcare

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Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927

(Admin) and Bolton v The Law Society [1993] EWCA Civ 32.

As regards remediation, Mr Brown referred the panel to the cases of Cohen v General

Medical Council [2008] EWHC 581 (Admin) and Cheatle v GMC [2009] EWHC 645

(Admin) and submitted that dishonesty was difficult to remediate. Previous repeated

acts of dishonesty, as found proved by the panel, suggested that you had not learned

from your past mistakes and would therefore be likely to repeat conduct of the kind

found proved in the future.

Mr Akinoshun submitted, on your behalf, that although the charges found proved may

amount to misconduct, your fitness to practise is not currently impaired. He submitted

that you had given evidence to the panel of your remorse and insight and had been

open and honest with your current employer regarding your past convictions and

dismissals as well as regarding these proceedings. He drew the panel’s attention to the

testimonial from your current employer which supported your evidence. In light of this,

Mr Akinoshun submitted that the panel could conclude that there was no risk of

repetition and therefore a finding of current impairment was not necessary.

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

number of judgments which are relevant, these included: Roylance [2000], Nandi v

GMC [2004] EWHC 2317 (Admin), Grant [2011], Cohen [2008] and R v NMC (ex parte

Johnson and Maggs) (No 2) [2013] EWHC 2140 (Admin).

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. Secondly, only if

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

circumstances, your fitness to practise is currently impaired as a result of that

misconduct.

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

regard to the terms of The code: Standards of conduct, performance and ethics for

nurses and midwives 2008 (“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 your actions did fall significantly short of the standards

expected of a registered nurse, and that your actions amounted to a breach of the

Code. Specifically:

The people in your care must be able to trust you with their health and wellbeing To justify that trust, you must: • be open and honest, act with integrity and uphold the reputation of your profession.

Act with integrity 51 You must inform any employers you work for if your fitness to practise is called

into question.

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

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

of misconduct. However, the panel was of the view that your actions and omissions fell

seriously short of the standards expected of registered nurses and therefore did amount

to misconduct.

The panel considered that the charges found proved fell into two categories: non-

disclosure and dishonesty. The panel first considered whether your acts of non-

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disclosure (in relation to your dismissal from SLAM, the reasons for leaving cited on

your 2009 and 2010 application forms and subsequent interviews at ELFT, and the

NMC’s 2012 investigation and subsequent caution order) were serious enough to

amount to misconduct. The panel was of the view that your acts of non-disclosure

deprived your employers of important information which undermined the integrity of the

recruitment process and their ability to risk assess the delivery of their services. This

could have potentially severe implications for how the organisation is run and ultimately

the standard of patient care provided. The panel also noted that your successful

application in 2010 was for a band 6 position in which you were to act as a team leader

for junior colleagues. The panel was of the view that your colleagues, and other

members of the profession, would find it deplorable that you withheld details of your

employment history when applying for a senior position in which you acted as a role

model for colleagues. For these reasons the panel decided that your acts of non-

disclosure were sufficiently serious to amount to misconduct.

The panel was also of the view that the charges of dishonesty found proved were

sufficiently serious to amount to misconduct. It was mindful that honesty, integrity and

trustworthiness are considered to be the bedrock of any nurse’s practice and that your

repeated acts of dishonesty fell far below the standards expected of a registered nurse .

The panel therefore found that your actions and omissions did fall seriously short of the

conduct and standards expected of a nurse and amounted to misconduct.

Decision on impairment The panel next went on to decide if as a result of this misconduct your fitness to practise

is currently impaired.

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

to be professional and to maintain professional standards. Patients and their families

must be able to trust nurses with their lives and the lives of their loved ones. To justify

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that trust, nurses must be honest and open and 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:

In determining whether a practitioner’s fitness to practise is impaired by

reason of misconduct, the relevant panel should generally consider not

only whether the practitioner continues to present a risk to members of the

public in his or her current role, but also whether the need to uphold

proper professional standards and public confidence in the profession

would be undermined if a finding of impairment were not made in the

particular circumstances.

Mrs Justice Cox went on to say in Paragraph 76:

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

submissions, principally from Ms McDonald, as to the helpful and

comprehensive approach to determining this issue formulated by

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

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

panels considering impairment of a doctor’s fitness to practise, but in my

view the test would be equally applicable to other practitioners governed

by different regulatory schemes.

Do our findings of fact in respect of the doctor’s misconduct,

deficient professional performance, adverse health, conviction,

caution or determination show that his/her fitness to practise is

impaired in the sense that s/he:

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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 determined that limbs (b), (c) and (d) were engaged and, in this case,

inextricably linked. It considered that by acting dishonestly you breached a fundamental

tenet of the profession and, as such, brought the profession into disrepute.

The panel considered the questions posed in Cohen and concluded that your acts of

non-disclosure were remediable but your dishonesty would be more difficult to address.

It had regard to the evidence you gave at the impairment stage and took account of the

written testimonials which confirmed that you have been open with your current

employer about these proceedings and voluntarily informed the agency of your

dismissal from SLAM.

However, although you gave evidence that you “accepted” the panel’s findings, when

asked during cross-examination if you now recognised that your actions were dishonest,

your answers were evasive and equivocal. You reiterated that “knowing what I know

now, I would act differently” and again cited naivety and a lack of understanding of the

process as reasons for your actions. Although you have demonstrated that you have

been open with your current employer, the panel was not satisfied that you had

demonstrated any real insight or understanding as to why this was important and

necessary or why your past actions were wrong. The panel considered that, in order to

fully remediate your practice you needed to first accept and understand your failings

and truly acknowledge that your actions were not acceptable. In light of your lack of

insight and understanding, the panel concluded that there remained a risk of repetition

27

and therefore a real possibility that you would, in the future, act dishonestly, breach a

fundamental tenet of the profession and bring the profession into disrepute.

The panel also bore in mind that the overarching objectives of the NMC are to protect,

promote and maintain the health, safety and well-being of the public and patients, and

to uphold/protect the wider public interest, which includes promoting and maintaining

public confidence in the nursing and midwifery professions and upholding the proper

professional standards for members of those professions. The panel considered that

both your acts of non-disclosure and of dishonesty threatened the reputation of the

entire nursing profession and undermined the trust and confidence that the public place

in registered nurses.

The panel therefore determined that, for all the reasons above, a finding of impairment

on public interest grounds is necessary.

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

currently impaired.

Determination on sanction The panel considered this case very carefully and decided to make a striking-off order.

It directs the registrar to strike you off the register. The effect of this order is that the

NMC register will show that you have been struck off the register.

Mr Brown outlined aggravating and mitigating factors in this case and referred the panel

to the Indicative Sanctions Guidance (“ISG”). He submitted that the dishonesty in this

case was repeated and did not fall at the lower end of the spectrum. He referred the

panel to the judgement of Bolton v The Law Society [1993] EWCA Civ 32 regarding the

importance of protecting the collective reputation of a profession.

28

Mr Akinoshun reminded the panel of the need to act proportionally and to balance your

interests with the public interest. He outlined further mitigation, including the financial

implications that a suspension or striking-off order would have on your family, and

submitted that the public interest may also include the safe return to practice of an

experienced and knowledgeable nurse whose clinical skills had never been called into

question.

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

of Parkinson v NMC [2010] EWHC 1898 (Admin) but also reminded it that a suspension

or striking off order should not be seen as the “default” outcome and that every case

must be assessed on its own particular set of circumstances.

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

adduced in this case. The panel bore 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 Indicative Sanctions

Guidance (“ISG”) 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 that the mitigating factors in this case were:

• You have engaged with these NMC proceedings;

• There are no reported concerns regarding your clinical skills and you have

positive references from your current employers to attest to this;

• You have demonstrably disclosed your employment and NMC history to your

current employer;

• At the time of the events leading to the charges you were experiencing difficult

personal circumstances including [PRIVATE].

The panel considered that the aggravating factors in this case were:

• Your dishonesty was repeated;

• There was an identified risk of repetition;

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• You lacked any real insight;

• This is not the first time that you have faced NMC proceedings.

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 ISG, 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 your 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 was of the view that a caution order would not be

sufficient to mark the conduct as unacceptable and would not send a strong enough

message about the standards expected of registered nurses. The panel therefore

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 your registration

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

conditions imposed must be proportionate, measurable and workable. The panel took

into account the ISG, in particular:

64.8 It is possible to formulate conditions and to make provision as to how

conditions will be monitored

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

be formulated, given the nature of the charges in this case. The panel considered that,

as your misconduct related to your attitude and behaviour, rather than your clinical

practice, there were no workable conditions which could be formulated which would

30

adequately address these issues. Therefore, a conditions of practice order would not be

sufficient to protect the public interest and was not the appropriate order.

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

appropriate sanction. Paragraph 66 indicates that a suspension order would be

appropriate where (but not limited to):

66 A suspension order directs the Registrar to suspend the nurse or midwife’s

registration for a period of up to one year. They may not practise as a registered nurse

or midwife during the period that the order is in force. A suspension order must be

reviewed before its expiry.

Key considerations 66.1 Does the seriousness of the case require temporary removal from the register?

66.2 Will a period of suspension be sufficient to protect patients and the public interest?

The panel gave serious consideration to whether a suspension order would be sufficient

to maintain standards and uphold the reputation of the nursing profession in this case. It

acknowledged that the evidence before it suggested that you were a safe and clinically

competent nurse who provided good care to your patients.

However, the panel was also mindful that this case involved repeated acts of non-

disclosure and dishonesty, of a similar nature, over several years. It also had regard to

its earlier findings at the impairment stage, regarding your lack of insight and

understanding. The panel was particularly concerned by your lack of insight, given that

you had previously been subject to two disciplinary hearings regarding your failure to

disclose information to your employer. It did not appear to the panel that you had

learned from your previous mistakes. The panel also had regard to the fact that,

although it had been put forward in mitigation that ELFT had not dismissed you

following the disciplinary hearing in 2014, this had been on the basis that they thought

you were being truthful when you told them that you did not become aware of the

31

2012/13 NMC investigation until 5 February 2013. The panel, in the course of its

findings on facts, now know that you in fact knew of the NMC investigation as early as

September 2012, and considered that this added to the seriousness of your dishonesty.

Your conduct, as highlighted by the facts found proved, was a significant departure from

the standards expected of a registered nurse and seriously undermined the trust and

confidence which the public place in nurses and threatened the integrity and reputation

of the entire profession. The panel was therefore not satisfied that a suspension order

would be the sufficient, appropriate or proportionate sanction to protect the public

interest in this case, and moved on to consider a striking-off order.

The panel took note of the following paragraphs of the ISG:

71.1 Is striking-off the only sanction which will be sufficient to protect the public interest?

71.2 Is the seriousness of the case incompatible with ongoing registration (see

paragraph 66 above for the factors to take into account when considering seriousness)?

71.3 Can public confidence in the professions and the NMC be sustained if the nurse or

midwife is not removed from the register?

72 This sanction is likely to be appropriate when the behaviour is fundamentally

incompatible with being a registered professional, which may involve any of the

following (this list is not exhaustive):

72.1 Serious departure from the relevant professional standards as set out in key

standards, guidance and advice including (but not limited to):

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

midwives

72.2 …

72.3 …

72.4 …

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72.5 …

72.6 Dishonesty, especially where persistent or covered up

72.7 Persistent lack of insight into seriousness of actions or consequences

72.8 …

The panel considered that your repeated dishonesty and persistent lack of insight,

despite a series of disciplinary and regulatory proceedings, was a significant departure

from the standards expected of a registered nurse and indicative of a deep-seated

attitudinal problem which was fundamentally incompatible with you remaining on the

register. The panel was of the view that honesty, integrity and openness are the

bedrock of the nursing profession and that to allow you to continue practising in light of

the panel’s findings would severely undermine public confidence in the nursing

profession and in the NMC as a regulatory body.

The panel took account of the mitigation put forth on your behalf and was aware of the

significant emotional and financial impact that a striking-off order would have on you

and your extended family. However, the panel was also acutely aware that a

profession’s most valuable asset is its reputation and that appropriate measures must

be taken to protect this. It therefore decided that, in this case, your interests had to be

subordinate to the interests of the public and the profession as a whole.

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. Having regard to the matters it identified, in particular the

effect of your actions in bringing the profession into disrepute by adversely affecting the

public’s view of how a registered nurse should conduct himself, the panel has

concluded that nothing short of this would be sufficient in this case.

The panel considered that this order was necessary to mark the importance of

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

33

profession a clear message about the standard of behaviour required of a registered

nurse.

Determination on Interim Order Mr Brown made an application for an 18 month interim suspension order. He

recognised that there were no patient protection concerns in this case, and that the bar

was set high for interim orders imposed on public interest grounds alone. Nevertheless,

he submitted that the threshold was met in this case due to the serious and repeated

nature of your dishonesty and the reasons for the sanction imposed by the panel.

Mr Akinoshun submitted that, as there were no public protection concerns in this case,

patients would not be put at immediate risk of harm if you were allowed to continue to

practise during the appeal period. He therefore submitted that an interim order was not

necessary.

The panel accepted the advice of the legal assessor.

The panel considered the submissions of Mr Brown and Mr Akinoshun and had regard

to its earlier findings. It was aware of the high threshold for the imposition of interim

orders on public interest grounds alone but considered that public confidence in the

profession and the NMC as a regulator would be undermined if you were to be allowed

to continue to practise during the appeal period. It therefore determined that an interim

suspension order, although not necessary for the protection of the public, was otherwise

in the public interest.

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 you are sent the decision of this hearing in writing.

34

That concludes this determination.