Newsletters Professional Discipline 25th Sep 2017

Differentiating Dishonesty

 Watters v Nursing and Midwifery Council [2017] EWHC (Admin) 1888, Lusinga v Nursing and Midwifery Council [2017] EWHC (Admin) 1458

Two recent decisions stress the need for Indicative Sanctions Guidelines to differentiate between different degrees of dishonesty.

The appellant in the case of Watters v NMC was a highly experienced, oncology nurse with an unblemished character. The facts of this case centred around a copy of a training certificate in Adult Immediate Life Support submitted by the appellant in support of an application she made for work with a nursing agency. The appellant had undertaken the relevant training and received the certificate in 2014, but the date on the certificate had been altered to read 27 August 2015 so as to render the training current and within 12 months of her application.  The alteration was identified and the appellant was referred to the Nursing and Midwifery Council.

The appellant maintained she had inadvertently submitted the particular certificate concerned with a number of others about which there was no complaint. She had not made the alteration herself and she did not know how it had come about. She had not sought to mislead anyone because she had merely copied the amended certificate without appreciating it had been falsified.

Whilst there were a number of charges the essence of the case against the appellant was that she had dishonestly altered the date of the certificate to give the impression that her training was up to date to support her application for work. The Panel found that dishonesty was proved and that this amounted to misconduct which impaired the appellant’s fitness to practise. The sanction imposed was one of striking off.

On appeal the appellant challenged the Panel’s decision on factual matters, misconduct and impairment and furthermore that the sanction imposed by the Panel was excessive and disproportionate in all the circumstances.  The High Court agreed with the findings of the Panel in all respects save for the sanction imposed. Indeed, it should be noted that at the outset of the appeal the NMC had conceded that the sanction had been excessive and disproportionate submitting that a suspension of 6 months would have properly met the gravity of the misconduct.

The High Court agreed that striking off was disproportionate and excessive.  It was noted that whilst it is right that the impact upon the registrant is not the foremost concern when a Panel has made a finding of misconduct and impairment, it must nevertheless be an important consideration.  Furthermore, the court found that the Panel had jumped to a striking off without properly putting into context the dishonesty that it had found.  Namely, that this was a one‑off fault in the context of a life‑long career of public service of a high standard.  It was wholly out of proportion for the Panel to conclude that suspension was not a suitable penalty.  In the current case, this appellant had corrected her error.  She had suffered considerably under the findings of the Panel and the damage to her reputation and her sense of self‑worth was profound. A suspension order of two months was appropriate.

The Court observed that where dishonesty is a central feature of a Panel’s determination, as the case of Parkinson v Nursing and Midwifery Council [2010] EWHC 1898 demonstrates there will always be a severe risk of a registrant’s name being erased from the register.  Conduct which is not regretted and exculpated can forfeit the opportunity of a lesser penalty.  Where a registrant fails to co‑operate with an investigation, fails to engage with the Panel’s hearing or persists in misconduct, it will be impossible in good sense for a Panel to pass a lenient penalty.  In the Watters case, the Court found that the appellant did not fall into any of these categories and described the Indicative Sanctions Guidance to Panels (ISG) as a “blunt instrument” when considering cases of dishonesty.

The Court referred to the case of Lusinga v NMC, a case which centred around the appellant’s dishonest failure to inform his employer that he was undertaking additional nursing employment. The thrust of the challenge on appeal was that the panel failed properly to evaluate the mitigation relied upon before deciding to reject the possibility of suspension. The Court upheld the appeal noting that:

“[83] Furthermore, on the scale of dishonesty, this was a case at the very bottom end. There was concealment but not active deception. There was no ill-gotten financial gain, nor any attempt at one. Mr Lusinga was merely “moonlighting” without permission which could not have been unreasonably withheld and which was not per se unlawful. None of these mitigating features are mentioned in the panel’s decision, which does not include any indication of a proper understanding of the employment law position, as I have outlined it earlier.’

 [84] As Mr Lusinga neither made any fraudulent gain, nor told any lie, nor committed any crime, he should not have been treated as if he had been a criminal, as implied by a comparison with the facts of a case such as Parkinson. Nor had he been found to have endangered any patient or acted with professional incompetence. In those circumstances, the public interest in the safe return to practice of a competent nurse would have featured as a consideration in a fair and balanced sanction decision. It did not”.

At paragraphs 103 and 104 Kerr J observed the following:

“[103] I hope the Indicative Sanctions Guidance will be looked at again in the light of this judgment. The guidance does not differentiate between different forms of dishonesty, and takes one of the most serious forms of dishonesty (fraudulent financial gain) as the paradigm, without alluding to the possibility that dishonest conduct can take various forms; some criminal, some not; some destroying trust instantly, others merely undermining it to a greater or lesser extent. 

[104] The guidance, in my respectful opinion, needs to be more nuanced in that respect. It should not lump the thief and the fraudster together with the mere contract breaker“.

The Court in Watters adopted the observations of Kerr J and added:

If the ISG had been a little more detailed, a little more nuanced and considered the broad spectrum of dishonesty misconduct in a little more detail, in my judgment it is highly unlikely that this appellant would have had to suffer the months that she has since the Panel’s determination until today”.

In both Lusinga and Watters the courts have made clear that the time has come for the Regulator to consider and provide clarity to the guidance given to panels in relation to dishonesty and how to properly approach its broad spectrum.

Alexandra Tampakpoulos

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