Okee v Nursing and Midwifery Council - [2014] All ER (D) 07 (Mar)

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In October 2005, the appellant nurse was convicted of failing to provide a specimen of breath for analysis. In January 2006, she was convicted of driving with excess alcohol. Both convictions would have been spent after five years.

In October 2010, the appellant was admitted to the register as a newly qualified nurse. In December, she successfully applied for a job with an NHS Foundation Trust (the trust) as a staff nurse.

As part of that process, she completed an online application form (the application form), in which she did not disclose her unspent criminal conviction. She also submitted a signed declaration form (the declaration form) which confirmed that she had never been convicted of any offence by a court in the United Kingdom.

In March 2011, she commenced employment with the trust. In June, her criminal records bureau check was returned identifying her criminal convictions and she was invited to a meeting with the trust. During that meeting, the appellant falsely told LL that it was her sister and not her who had committed the offences using her car and driving licence.

The claimant maintained that after the meeting she spoke to LL and told him the truth.

That was disputed by LL.

The matter was referred to the respondent Nursing and Midwifery Council (NMC), which decided that the appellant had a case to answer.

The charges against her were, in essence, that she had: (i) made a false declaration in the application form; (ii) made a false declaration in the declaration form; and (iii) had acted dishonestly. The appellant admitted charges (i) and (ii), but denied (iii).

She maintained that she had not deliberately misled the trust and her failure to disclose the criminal convictions had been an innocent mistake.

In August 2013, the case was heard by the Conduct and Competence Committee Fitness to Practice Panel of the NMC (the panel). The panel found that the charge of dishonesty was proved. It concluded that the appellant's actions had been planned and deliberate and that she had abused her position as a nurse and had breached the trust placed in her by her employer (the abuse of position finding).

The panel found that the appellant had been guilty of serious misconduct, her fitness to practice had been impaired and, in the circumstances, the only appropriate sanction had been to strike her off the register.

The appellant appealed against that decision under article 29 of the Nursing and Midwifery Order 2001.

The appellant submitted that, inter alia; first, there had been a serious procedural irregularity or the panel's finding had been perverse in relation to the abuse of position finding.

The panel had, in effect, introduced a fourth charge of which the appellant had had no notice and had not been prepared to answer.

Consequently, she had not had a fair hearing (the abuse of position issue). Secondly, the panel had given inadequate weight or credit to the admissions made by the appellant and had not properly taken into account the mitigating features of the case.

That included, inter alia, the fact that one of the convictions was spent and the other was nearly spent at the material time (the admissions and mitigation issue). Further, the panel had wrongly characterised the appellant as evasive (the evasiveness issue).

Finally, the decision to strike the appellant off the register had been excessive and disproportionate (the sanction issue).

The appeal would be dismissed.

(1) In relation to the abuse of position issue, the charges considered by the panel had indeed been the three charges that the appellant had been called to answer. The appellant had contested the critical allegations of dishonesty and intention to mislead. The panel therefore had to make finding on those issues. The appellant's evidence and the evidence of LL had been directly relevant in that regard.

The question of abuse of position had not featured in the panel's findings about the dishonesty charge. Rather, those findings had been made in relation to the question of impairment. The panel had meant to convey the fact that membership of the nursing profession carried with it obligations of honesty and integrity. Its reference to abuse of position had been no more than a reference to the findings by the panel that the appellant had deliberately lied.

It had not been a separate finding relating to separate conduct, but had been a conclusion to be drawn from the first stage. The appellant had been aware that her dishonesty had been directly called into question and had had the opportunity to address LL's evidence and to make detailed submissions. Further, the panel had been entitled to take into account the appellant's attitude to the events charged, including her attitude when question by her employers.

There had therefore not been any procedural irregularity and the panel's findings had not been wrong.

Nicholas-Pillai v General Medical Council [2009] All ER (D) 67 (Jun) considered.

(2) In relation to the admissions and mitigation issue, the panel had not referred to the fact that one of the appellant's convictions had been spent and the other had been nearly spent. However, it had been clear that the panel had been aware that only one conviction had been unspent and the dates of the appellant's convictions had been clearly referred to.

TheĀ other matters raised in relation to mitigation had not amounted to even an arguable basis for criticism. The appellant's admissions in relation to the first two charges had been undermined by what she had said regarding their value. In the circumstances of the case, there had been no error of principal in the panel's consideration of relevant mitigating factors, and their decision could not be characterised as wrong.

(3) In relation to the evasiveness issue, the tribunal of fact had been in the best position to determine that question. Whilst it had been right that there had been a number of instances where the appellant had given direct answers, there had also been examples where her answers had been less frank. A finding that the appellant's evidence had not been open and honest but had been characterised by evasiveness had been open to the panel on the facts of the case.

(4) In relation to the sanction issue, in the instant case, the panel had dealt carefully with the level of seriousness involved, and had done so having seen and heard witnesses and having assessed the appellant. It had directed itself in accordance with the relevant guidance and appropriately in accordance with the law.

On the information available and in the light of the panel's findings, it had not been possible to find that the panel's decision had been wrong. It had fallen well within the range of reasonable responses.

Reproduced with kind permission of LexisLibrary.