Lusinga v NMC [2017] EWHC 1458 (Admin)

Posted by Louise Culleton on
The appellant, a nurse, was struck off the NMC register for not informing his employer of additional work he was undertaking elsewhere, when he had signed written terms of employment to this effect.

The appellant appealed on the basis that the decision to strike him off was disproportionately harsh, there was an error of approach to mitigating factors which were not properly evaluated and findings relevant to sanction were unjustified on the evidence.

Facts

The appellant qualified as a mental health nurse in 2008 and had no previous findings of misconduct against him.  Due to his personal circumstances he was under domestic financial pressure to work long hours in order to maximise his earnings. In 2011 he started full time work for a care provider called the Jeesal Group and signed written terms of employment stating that he would not, without the employer's permission, undertake other employment.  The employer's permission could not be unreasonably withheld.  The appellant was also issued with another form to sign consenting to opt out of the provision in the Working Time regulations 1998 limiting his working hours to 48 hours per week, presumably to enable him to undertake overtime work with the Jeesal Group.  The appellant's job did not therefore limit the number of hours he could work or the number of jobs he could take on; it merely gave his primary employer a veto over additional work with other employers, which could not unreasonably be withheld. 

The appellant started to work for a second employer – Walsham Grange somewhere between 2011 and early 2013.  He did not inform the Jeesal Group.  Whilst he was working for Walsham Grange an allegation concerning his fitness to practice was made to the NMC, he resigned from Walsham Grange and informed the Jeesal Group about the allegation, which in turn made them aware that he had been undertaking work elsewhere.  At a meeting with the personnel manager, when it was raised with him that not informing them of his secondary employment was a matter of concern given his contract set out that he should seek prior permission from them, the appellant said that he was not aware of this contractual requirement. 

He continued to work for the Jeesal Group but in October 2014 he also started work for an additional employer – Amberley Hall, working an additional three twelve hour shifts weekly.  He did not inform the Jeesal Group about the additional work, but following further allegations in respect of medication errors at Amberley Hall, the Jeesal Group once again become aware that the appellant was undertaking additional work elsewhere.  When called into a meeting and asked why he had not asked for permission from the Jeesal Group, he replied that he "did not think about it".  He was asked to submit a formal request for permission to work elsewhere retrospectively, no concern was expressed about the appellant endangering patient safety, he was not prevented from taking on additional work elsewhere and when a disciplinary hearing was convened in respect of not informing the Jeesal Group about his secondary work, the appellant was not dismissed from his employment with them. 

The NMC Hearing

The Committee found the allegations in respect of not informing the Jeesal Group that he was undertaking additional work at Amberley Hall, and the associated dishonesty that he had sought to conceal his additional employment from the Jeesal Group, proved - the sting of dishonesty being the withholding of information which he should have disclosed.  These allegations had initially been admitted by the appellant. 

The appellant had produced a 'reflective piece' showing insight and remorse, and setting out the mitigating factors of his family and financial responsibilities.  In this document, which Judge Kerr termed a 'remarkably self-deprecating document' he accepted that "in hindsight not informing my employer that I was working elsewhere was dishonest" therefore appearing to accept the alleged dishonesty against him as having been the failure to inform.

According to Judge Kerr's analysis some confusion therefore arose as to how the appellant understood the case against him in respect of dishonesty.  Indeed, the Legal Assessor had intervened at one point during the hearing to try and clarify it for the appellant saying that not informing somebody of something does not necessarily make it dishonest and asking whether the appellant had been "trying to hide" his second job from the Jeesal Group".   The appellant replied "I wasn’t trying to hide it…. At the time I never thought about it that much".  As a result the Committee did not accept the appellant's admission and invited evidence and submissions about it. 

Ultimately the Committee found the allegation of dishonesty proved and therefore went on to consider impairment and sanction. 

The Committee's decision set out that the hours worked in the second job were considerable, that there had been a previous warning about exactly the same thing in 2013 and that the appellant therefore knew he needed permission to take on additional work elsewhere, that he had changed his position in respect of dishonesty and that his evidence was inconsistent and lacked credibility.  The Committee found that the appellant had financial problems and that he believed if he asked for permission to do a second job it would not be granted and so for that reason he had decided not to ask permission and had concealed his second job intentionally in order to earn extra money and this was dishonest.  They considered that the hours he had worked had been too long, which had placed patients at an increased risk of harm and that he had placed his own needs above those of patients.  They considered that he had attempted to minimise the level of his dishonesty in respect of withdrawing his admission to the charge which brought into question his integrity and meant that there was a significant risk of him repeating his actions.  They went on to say that they felt that the authenticity of the reflective piece was undermined and therefore they did not accept that the remorse and contrition expressed in it was genuine.  As a result they decided that the appellant's fitness to practice was impaired. 

In relation to sanction, the Committee set out in six brief bullet points the mitigating features of the case; personal circumstances, completion of training to demonstrate continued professional development, some positive comments from colleagues about his nursing practice, having engaged with the disciplinary process and no previous findings of impairment or no repetition since the incident. 

However, having worked up the available sanctions in ascending order, they then gave several reasons why suspension would not be an adequate sanction.  First, that the misconduct, although a single act was a course of dishonesty over a protracted period in that the work for the second employer continued over a period with full knowledge that he was contractually required to disclose this work, that it was compounded by the previous warning and that he had made attempts to diminish the level of dishonesty in his evidence to the point where he made his admission to the charge equivocal.  The fact that they considered that he had placed his financial interests ahead of patient care whilst placing colleagues and employers at risk led to them concluding that he demonstrated deep-seated attitudinal problems.  They dismissed the reflective piece.  The Committee then drew on the example from the NMC's Indicative Sanctions Guidance citing dishonesty in respect of fraudulent claims for monies and said that the appellant had concealed his second job, abused the position of trust, frustrated the monitoring system to prevent nurses from putting patients at risk by working excessive hours (although which system this was referring to is uncertain) and the dishonesty lack of insight and convincing remorse was incompatible with continued practice as a nurse.

Decision on appeal

The appeal was upheld on all grounds.  Judge Kerr was particularly critical of the approach of the Committee in respect of its dismissal of the genuineness of the appellant's reflective piece and initial admission of dishonesty as well as its failure to properly consider mitigating features and the type of dishonesty that this was - at the bottom end of the scale rather than there having been active deception or fraudulent gain. 

The resultant sanction of striking off was disproportionate and a period of the equivalent of twelve months suspension from the date of the decision was imposed in its place.

Criticism was also made of the NMC's imprecise drafting in respect of how dishonesty was alleged, which was the cause of the appellant's initial admission becoming equivocal rather than any change of his position making his initial admission and associated mitigation un-genuine.

In post-script the Judge indicated that he hoped that the Indicative Sanctions Guidance document would be looked at again in the light his judgment and be made to be more nuanced; the current guidance failing to differentiate between different forms of dishonesty and taking fraudulent financial gain as the paradigm without referring to other possible forms of dishonest conduct.  He also hoped that the NMC would look again at the question of excessive hours and that this could be made the subject of a direct obligation not to exceed a permitted maximum if it was widely considered among experts that it was normally unsafe to work more than a specified number of hours per week. 

Case Analysis

How dishonesty in professional regulatory proceedings should be approached, and what sanction it should result in, is becoming far less clear-cut than it once was where proven allegations of dishonesty would almost inevitably lead to removal from the register, or a lengthy term of suspension – but rightly so. 

Dishonesty is a more nuanced issue than the oft-quoted cases of fraudulent financial gain or active deception and incorporates a wide range of wrong-doing. 

Care must be taken at all stages of the regulatory process; from the point of the drafting of allegations to sufficiently particularise or explain the nature of the dishonesty so as to avoid equivocal admissions, through to the fitness to practice committees proper consideration of the nature of the dishonesty as well as all relevant mitigating factors.

Whether the dishonesty is 'passive' rather than 'active' should have a bearing on where the wrongdoing is placed on the scale of dishonesty. 

The appeal judge appears to have taken at face value the appellant's explanation that he simply did not think about the issue when taking on a secondary job in spite of the fact that he had been warned about such a situation just the year before.  Surely such a recent reminder as to his contractual obligations would have been in the appellant's mind when taking on the additional work and makes the dishonesty more than merely passively not informing his employer of something which he should have.  It would appear that the appeal judge felt that the Committee had been unjustly harsh in their approach to the Registrant's evidence; however he of course did not have the benefit of hearing the evidence first hand or seeing how the hearing unfolded in respect of the equivocal admission to dishonesty. It is perhaps surprising that it was not considered that the appellant's actions to go directly against the reminder of the contractual obligations did not take it beyond the merely passive end of the scale of dishonesty. 

The Indicative Sanctions Guidance documents of regulatory bodies should reflect the different forms of dishonesty and be more nuanced, which might in turn assist Committees in correctly approaching the nature or level of dishonesty so as to reach more fairly balanced and reasoned decisions at the sanction stage. Action should therefore be taken by the various regulatory bodies to amend their guidance documents in order to assist panels in their consideration of allegations of dishonesty.

Action should also be taken by regulatory bodies regarding the issue of there being no restriction on working hours for registrants if it were considered that it was unsafe to work more than a specified number of hours per week.   

About the Author

Louise is a Barrister Associate in our Professional Regulatory team. She has extensive experience in appearing before regulatory committees at fitness to practice hearings and managing investigations.

Louise Culleton
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