Beverly Amavih-Mensah, Mark - NMC

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Conduct and Competence Committee Substantive Hearing Dates: 18 – 19 – 20 January 2016 Resuming from: 9-12 June 2015, 23-26 June 2015, and 7-15 October 2015 Nursing and Midwifery Council, 61 Aldwych, London, WC2B 4AE

Name of Registrant Nurse:

Mark Beverly Amavih-Mensah

NMC PIN:

07H0352E

Part(s) of the register:

Registered Nurse – sub part 1 Mental Health (November 2007)

Area of Registered Address:

England

Type of Case:

Misconduct

Panel Members:

John Matharu (Chair/Lay member) Cynthia Mendelsohn (Lay member) Mary McCartney (Registrant member)

Legal Assessor:

Robin Hay

Panel Secretary:

Aneliya Kolarova (9-12 June 2015, 23-26 June, 7-13 October 2015) Josh Dutton (14-15 October 2015) Bianca M. Mancini (18 – 19 – 20 January 2016)

Registrant:

Present and represented by Mr Mukhtiar Singh (9-12 June 2015 and 23-26 June 2015) Present and not represented (7-15 October 2015) Present and not represented (18 – 19 – 20 January 2016)

Nursing and Midwifery Council:

Represented by James Edenborough (previously John Dowlman), Case Presenter instructed by NMC Regulatory Legal Team

Charges found proved

1, 2, 3, 4, 5, 6, 9, 10.2, 10.3, 11, 12

Charges found not proved

10.1

No case to answer

7 and 8

Fitness to Practise:

Impaired

Sanction:

Striking off order

Interim order:

Interim suspension order – 18 months

Charges

That you, a Registered Nurse: 1. In or around October 2011, failed to disclose to Central North West London NHS Foundation Trust that you had been dismissed by your previous employer South Essex Partnerships NHS Foundation Trust (SEPT):

1.1. In your NHS Application form for employment as a Band 6 Community Mental Health Nurse in the Community Recovery Team in Brent CMHT; 1.2. In the Confidential Form A dated 6th November 2011.

2. That your actions at 1.1 and/ or 1.2 were dishonest in that you knowingly misrepresented the truth in relation to being dismissed by SEPT.

3. In or around June 2014, failed to disclose to the Sugarman Mind Agency that you were: 3.1. the subject of NMC proceedings; and/ or 3.2. That you had been dismissed by your previous employer, SEPT; and/ or 3.3. That you had been previously dismissed by Central North West London NHS Foundation Trust

4. That your actions at charge 3 were dishonest in that you knowingly misrepresented the truth in each instance so as to conceal information from potential employers.

5. In or around August 2014, failed to disclose to Central North West London NHS Foundation that you were: 5.1. the subject of NMC proceedings; and/ or 5.2. That you had been dismissed by your previous employer, SEPT; and/ or 5.3. That you had been previously dismissed by Central North West London NHS Foundation Trust

6. That your actions at charge 5 were dishonest in that you knowingly misrepresented the truth in each instance so as to conceal information from your potential employer.

7. On 8 October 2014 sent an email to Ms 6 purporting to forward details of the alleged disclosure on 7 August 2014 of NMC proceedings and your previous dismissals to the Sugarman Mind Agency: 7.1. knowing that no such email/ disclosure had been sent to the agency on 7 August or at any other time; and/ or 7.2. knowing that you had not made the disclosures in relation to prior dismissals and NMC involvement.

8. That your actions at charge 7 were dishonest, in that you knowingly misrepresented that you had disclosed your dismissals and NMC proceedings, as you were seeking to conceal your actions at one or more of charges 4, 5, 6, and 7.

9. Between 17 July 2013 and 2 December 2014, failed to disclose to Westmeria Recruitment Ltd that you were: 9.1 the subject of NMC proceedings; and/or 9.2 That you had been dismissed by your previous employer, SEPT; and/or 9.3 That you had been previously dismissed by Central North West London NHS Foundation Trust

10. Between 17 July 2013 and 26 July 2013 failed to disclose to Hammersmith and Fulham assessment team West London that you were: 10.1 the subject of NMC proceedings; and/or 10.2 That you had been dismissed by your previous employer, SEPT; and/or 10.3 That you had been previously dismissed by Central North West London NHS Foundation Trust

11. Between 14 October 2014 and 13 November 2014 failed to disclose to Cheam Recovery and Support Team that you were: 11.1 the subject of NMC proceedings; and/or 11.2 That you had been dismissed by your previous employer, SEPT; and/or 11.3 That you had been previously dismissed by Central North West London NHS Foundation Trust

12. That your actions at charges 9 and/or 10 and/or 11 were dishonest in that you knowingly misrepresented the truth in each instance so as to conceal information from potential employers.

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

Background

Mr Amavih-Mensah,

You were entered on the register as a mental health nurse in the United Kingdom (UK) in November 2007. You had worked in various roles, including a nursing role at the Bedfordshire and Luton Partnership Trust, which subsequently became known as the South Essex Partnership Trust (“SEPT”). You were dismissed from that position on 1 July 2010. All allegations stem from that incident.

In October 2011 you were interviewed for a role at the Central and North West London NHS Foundation Trust (“CNWL”) as a Band 6 psychiatric nurse in the Brent Recovery Team. It is alleged that in your application form and in the Confidential Form A you failed to disclose that you had been dismissed by SEPT for gross misconduct. It is alleged that in your application form, you simply stated ‘contract ended’ with respect to leaving your employment at SEPT and that in Confidential Form A, you left blank the answer section to the question whether you had ever been dismissed for misconduct.

In April 2012 you informed your line manager Ms 1 that you had been referred to the NMC by your previous employer SEPT.

As a consequence of these matters CNWL instituted disciplinary proceedings as a result of which, on 9 October 2012, you were dismissed.

You subsequently registered with employment agencies. In June 2014, you registered at the Sugarman Mind Agency (“Sugarman Agency”), another recruitment agency. It is alleged that you did not disclose your dismissals from the SEPT and from CNWL nor that you were subject to NMC proceedings. In the application form to the Sugarman Agency you answered in the negative the question whether you had ever been the subject of disciplinary action or undergoing disciplinary action. You were introduced by the Sugarman Agency to CNWL, for interview for a post with that Trust. You had been dismissed by CNWL in 2012, but CNWL were apparently unaware that they had previously dismissed you. It is alleged that you did not disclose to CNWL, at interview or

otherwise, that you were subject to NMC proceedings and that you had been dismissed by SEPT and also by CNWL itself.

Between July 2013 and December 2014, you were registered with Westmeria Recruitment Limited. It is alleged that when completing the Westmeria application form, you failed to disclose that you were subject to NMC proceedings and you signed a declaration to that effect. Also, you allegedly failed to disclose that you had been dismissed by SEPT and by CNWL. In July 2013 you were introduced by Westmeria to Hammersmith and Fulham and you failed to disclose to them these matters. In October 2014 you were introduced by Westmeria to Cheam Recovery & Support Team (“Cheam”) and again you failed to disclose these matters.

It is alleged that in failing to disclose these matters to the various Trusts and agencies you acted dishonestly.

Preliminary Matters

Applications under Rule 31

Mr Dowlman made an application that Mr 5 should give his evidence by telephone or in the alternative that his witness statement should be read into the record.

Mr Dowlman informed the panel that Mr 5 had forgotten about the hearing and had booked a holiday beginning 12 May 2015. He would therefore be unavailable between 14:00 and his return on 23 June 2015. He would however be available to give evidence today by telephone.

It was common ground that Mr 5’s evidence is crucially relevant to issues of fact and also to dishonesty.

Mr Singh, on your behalf opposed the application as fairness would require that the witness be physically present to give his evidence in order that his demeanour could be assessed by the panel and that he would be under no pressures of time.

The panel accepted the advice of the legal assessor.

The panel had in mind that Mr 5’s evidence was relevant to issues of fact and to the allegations of dishonesty. It concluded that the interests of justice would best be served if his evidence were to be given in person on 23 June 2015.

The panel therefore refused both limbs of Mr Dowlman’s application.

In the event the NMC evidence, apart from that of Mr 5, was completed on day 3 of the hearing, 21 June 2015, the panel indicated that it would sit again on 23 June 2015 to hear Mr 5’s evidence. Mr Singh submitted that in effect the NMC was applying for an adjournment until 23 June 2015. He opposed this and submitted that the hearing should continue without a break and that in the absence of Mr 5 the NMC should close its case.

He said that an adjournment would result in injustice to you as it would prolong the proceedings and cause you stress and further costs of representation.

The panel concluded that this was not an application to adjourn as the case was due to continue on 23 June 2015. The panel had previously rejected the NMC application under Rule 31 as Mr 5 was a crucial witness and it was known that he was able to attend on 23 June 2015. Even if this were an application to adjourn the matters advanced by Mr Singh would not amount to injustice as the delay would not affect the fairness of proceedings.

The panel therefore refused Mr Singh’s application and decided to resume on 23 June 2015.

Half-time submissions on no case to answer under Rule 24(7) of the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (“the Rules”)

At the close of the NMC’s case, Mr Singh, on your behalf, submitted that Charges 4, 5, 6, 7 and 8 were not well-founded.

Mr Singh informed the panel that it needed to consider whether there is sufficient evidence adduced by the NMC in relation to the above charges which would require a response from you. Mr Singh submitted that the threshold in this regard is “very high”.

Mr Singh invited the panel to look closely at the allegations alone and not to consider other matters or thoughts which may arise about whether something should or should not be done. Mr Singh submitted that the question for the panel is: “Has the NMC produced the evidence which is required?”

Mr Singh submitted that the panel should first consider Charge 7, in its entirety. He said that the charge relates to an email dated 8 October 2014 sent to Ms 6 disclosing an email which was purportedly sent on 7 August 2014 to Mr 5. Mr Singh submitted that the panel has not heard evidence in relation to your knowledge and that it is implicit from the charge that the allegation is that you did not send the email on 7 August 2014. The evidence adduced by the NMC in relation to this charge is from Mr 5, who stated that he did not receive the 7 August email. Mr Singh submitted that the panel may accept this, but that Mr 5 agreed that he is unable to say whether you had sent the email or not. Mr Singh invited the panel to consider the times when an intended recipient does not receive post, text messages or emails. He submitted that when these incidents occur the intended recipient does not automatically accuse the sender of lying. The intended recipient, in this case Mr 5, is unable to say whether it was in fact ever sent. Mr Singh submitted that evidence could only come from the registrant’s admissions or direct evidence from a phone or email account. Mr Singh submitted that all the panel has is a theory rather than evidence.

Mr Singh submitted that it must follow that Charge 8 could only be proved if Charge 7 were proved. He submitted that this is a serious allegation that you have in some way

invented an email. Mr Singh further submitted that a mere accusation does not mean that there is evidence that requires a response. Accordingly, he contended that there is insufficient evidence to satisfy the panel that Charges 7 and 8 could be proved.

Mr Singh submitted that Charge 4 is inherently linked to Charge 3. He conceded that Charge 3 did require a response from you, but that if you did not send the email of 7 August 2014, the failures in charge 3 cannot be dishonest as you had made the relevant disclosures prior to the commencement of your employment at the Trust.

In regard to Charges 5 and 6 Mr Singh’s submission was that they relate to disclosures to CNWL. Mr Singh’s first point was that the duty of disclosure to the Trust was that of the Sugarman Agency as it was required to carry out the checks as opposed to its being the registrant’s duty. His second point was that if the panel finds that you had sent the 7 August email to the Agency, there is nothing to suggest that you did not make the disclosures. He submitted that it follows in terms of Charge 6 that you had complied with your obligations.

In conclusion, Mr Singh submitted that these allegations hinge on the email of 7 August 2014, and there being no evidence of it not being sent, these allegations are not well founded.

Mr Dowlman agreed with Mr Singh’s submission that, at this stage, the test relating to this application is very high for a registrant and that the submission fails if there is any cogent evidence.

Mr Dowlman submitted that charges 7 and 8 do depend on whether the email of 7 August 2014 was sent by you. He observed that the panel has not heard evidence about your knowledge or your state of mind and that this is something for the panel to assess, weighing up all known factors. Mr Dowlman asked the question “Is it therefore just a mere accusation?” He submitted that the panel has seen the email sent on 8 October 2014 and therefore the allegations feature firmly in the realm of fact. He further submitted that your case is that within communications, “things sometimes get lost”. He contended that this does not apply to this case as the email of 8 October 2014 is an

assertion that the email of 7 August 2014 was sent. If this is not true, it must have been dishonest and fraudulent, and that the 8 October 2014 email was a deliberate attempt to deceive in the light of what was contained within it.

Mr Dowlman submitted that it was not irrelevant that you had failed to be open and honest in completing your application form to the Sugarman Agency.

With regard to Charge 5, and therefore to Charge 6, Mr Dowlman did not dispute that the Agency had a duty to carry out the necessary checks on your application. However, the hearing was not convened to decide whether the Sugarman Agency has fulfilled its duty. It is the NMC’s case that as set out in the Nursing and Midwifery Council’s The Code: Standards of conduct, performance and ethics for nurse and midwives (“the Code”), you had a duty to be open and honest, a fundamental tenet of the profession.

Mr Dowlman referred the panel to the evidence of Ms 3 who was able to speak on behalf of CNWL. She stated, “We expect all staff to be open and honest…I think there is a duty on the registrant to disclose.”

Mr Dowlman submitted that the evidence before the panel clearly establishes the initial prima facie case which is required at this stage of proceedings.

The panel accepted the advice of the legal assessor.

The panel first considered Charge 4. In June 2014 your Agency application process was proceeding. As at this date there is no evidence to suggest that you had disclosed the relevant matters to the Sugarman Agency prior to your purported email of 7 August 2014. By not disclosing this matter, contrary to the Code, there is a prima facie case in regard to the allegation of dishonesty. The email does not relate to this allegation and the application form alone is relevant. In regard to the objective test of whether according to the ordinary standards of reasonable and honest nurses what was done by you was dishonest, the panel determined that this could be proved. The panel also considered the subjective test in whether you yourself must have known that what you were doing was, by those standards, dishonest. Again, considering the evidence before

it, the panel considered this too could be proved. Accordingly, the panel found there to be a case to answer in relation to Charge 4.

In relation to Charges 5 and 6, the panel considered paragraph 51 of the Code which states:

“51. You must inform any employers you work for if your fitness to practise is called into question.”

The panel interpreted the “employer” referred to in the Code to apply not only to the Sugarman Agency, but also to the Trust. In her evidence, Ms 3 said that CNWL considered you to be under a professional duty to disclose to it the relevant matters. The panel therefore determined that the evidence is such that there is a case to answer with regard to Charge 5.

In regard to the objective test of whether according to the ordinary standards of reasonable and honest nurses what was done by you was dishonest, the panel determined that this could be proved. The panel also considered the subjective test in whether you yourself must have known that what you were doing was, by those standards, dishonest. Again, considering the evidence before it, the panel considered this too could be proved. Accordingly, the panel found there to be a case to answer in relation to Charge 6.

With regard to Charges 7 and 8 there was adduced in evidence the screenshot of your yahoo email account showing that an email entitled “confirmation of contract and disclosure” was sent to Mr 5 on 7 August 2014. The only other evidence before the panel is that of Mr 5 in which he stated that he had not received the 7 August 2014 email. Mr 5 was unable to make any positive comment about the screenshot. The panel found the evidence about these charges to be tenuous and inherently weak. The panel determined that although there was evidence from Mr 5 that the email was not received this was insufficient to prove that it was never sent. Accordingly, the panel found there to be no case to answer in relation to Charge 7 and as a consequence to Charge 8.

Decision on facts

In reaching its decision on the facts, the panel has taken into account the oral and written evidence adduced and the submissions made by Mr Dowlman, on behalf of the NMC, Mr Singh for the period during which he represented you and by you. Mr Singh represented you between 9 June 2015 and 11 June 2015, and 23 June 2015 and 26 June 2015. At the resumed hearing on 7 October 2015, at which time you were still being cross-examined, you were unrepresented.

The panel heard oral evidence from the following NMC witnesses: •

Ms 1, CNWL Investigation Officer



Mr 2, Recruitment and Employee Services Adviser at CNWL



Ms 3, Senior Human Resources Business Partner at CNWL



Ms 4, Head of Governance at Westmeria Agency



Mr 5, Recruitment Consultant at the Sugarman Agency

The above job descriptions were relevant at the time of the alleged incidents.

There were before the panel the agreed witness statements from: •

Mr 7, Team Manager at Cheam



Ms 8, NMC case officer



Ms 9, Senior Nurse practitioner at Hammersmith and Fulham

The panel found all the NMC witnesses to be credible, honest and measured. Their evidence to be generally clear, reliable and consistent with contemporaneous evidence. They did not embellish their evidence to your disadvantage.

The panel found you to be a very articulate witness. However, at times, it found your evidence evasive. When recounting incidents and faced with documentary evidence, your recollections appeared selective. It also found that on occasions, your evidence did not fully address the questions put to you. It therefore found significant parts of your

evidence unreliable as you did not always provide straight answers to questions asked by the NMC or by the panel and there were inconsistencies in your answers. Further, in your evidence you disputed paragraph 4 of Mr 7’s written statement, which had previously been agreed between the parties and as a result of which he was not called to give evidence. The panel therefore determined that when inconsistencies of evidence occurred, it preferred the evidence of the NMC witnesses to yours.

The panel accepted the advice of the legal assessor.

The panel was made aware that the burden of proof rests on the NMC throughout, and that the standard of proof is the civil standard, namely the balance of probabilities. This means that a panel may find a fact proved if it is satisfied that it is more likely than not to have occurred.

The panel considered each charge separately:

Charge 1

That you, a Registered Nurse: 1.

In or around October 2011, failed to disclose to Central North West London NHS Foundation Trust that you had been dismissed by your previous employer South Essex Partnerships NHS Foundation Trust (SEPT):

1.1.

In your NHS Application form for employment as a Band 6 Community Mental Health Nurse in the Community Recovery Team in Brent CMHT; FOUND PROVED

When completing the NHS Application form for employment at CNWL, the reason you gave for leaving your employment with SEPT, was “contract ended”. You did not disclose that you had been dismissed by your previous employer SEPT.

The form further provided that additional information regarding your employment history should be included. No such further information was included.

There was a declaration made by you at the back of this form. The declaration required you to confirm that the information provided by you was “true and complete” and that any omission, falsification or misrepresentation in the application form will be grounds for rejecting it or subsequent dismissal.

In your evidence, you said that you believed that the phrase “contract ended” was a correct description but you agreed that it could have caused confusion. You further said that you were experiencing significant personal difficulties at the time of completing this form. The panel rejected this account as the form was otherwise fully and accurately completed save for your crucial failure to disclose your disciplinary issues.

The panel concluded that as a registered nurse, you were under a duty to disclose on the application form the full reasons for the end of your employment at SEPT and your dismissal on the application form. The onus was on you to make the reasons clear. The panel was satisfied that you failed to disclose your dismissal and therefore found this charge proved.

1.2.

In the Confidential Form A dated 6th November 2011. FOUND PROVED

Confidential Form A, dated 6 November 2011 was a separate document to your NHS Application form and was completed on a different date. Again you did not disclose reasons for leaving your previous employer SEPT. When completing Question 7 of the form: “Have you ever been dismissed by reason of misconduct from any employment, office or other position previously held by you”, you left the box un-ticked. Further, there was space underneath that question to provide any details of a dismissal.

This document required you to sign a declaration about the truthfulness and completeness of the form and you have clearly signed your agreement to this. The panel therefore found this charge proved.

Charge 2

2.

That your actions at 1.1 and/ or 1.2 were dishonest in that you knowingly misrepresented the truth in relation to being dismissed by SEPT. FOUND PROVED

The panel applied the twofold test to the question of dishonesty. First whether, according to the ordinary standards of reasonable and honest nurses, your actions were dishonest. Second, if that was so, whether you must have realised that what you were doing was by those standards was dishonest.

In his evidence Mr 2 said that there was a pre-employment meeting on 6 December 2011 in order to gather information, for example of your eligibility to work in the UK. Your evidence was that in the course of the meeting you told him about your dismissal from SEPT. He said that at no time did you mention this. The panel preferred Mr 2’s evidence as such information would be regarded by him as significant.

The panel also heard from Ms 1 about the importance of CNWL being aware of previous disciplinary matters. She was clear that the onus was on the registrant and that the words “contract ended” failed to tell the Trust what it needed to know.

The panel determined that by the ordinary standards of reasonable and honest nurses your actions were dishonest. Objectively, it is dishonest for a person who has completed two separate forms on two separate occasions asking about previous disciplinary action, not to say so. Moreover you were experienced in completing application forms and you ought to have known that you should truthfully and accurately complete forms.

The panel decided that as a registered nurse you would have been aware of the significance of the information you were withholding.

In your evidence you said that you were experiencing personal difficulties at the time of completing these forms and as a consequence you made mistakes. The panel rejected this account as credible as both forms were otherwise complete and accurate and the

only omissions related to your dismissal from SEPT. Further, both forms were completed on separate dates and the omissions related to the same matter, namely your previous dismissal from SEPT. The panel was therefore satisfied that you failed to inform CNWL on two separate forms and signed them to confirm that the information was true and accurate. This was untrue. The panel is satisfied that you must have realised that what you were doing was dishonest. The panel therefore found this charge proved.

Charge 3

That you, a Registered Nurse:

3

In or around June 2014, failed to disclose to the Sugarman Mind Agency that you

were: 3.1.

the subject of NMC proceedings;

FOUND PROVED

The panel has already considered paragraph 51 of the Code which states:

“51. You must inform any employers you work for if your fitness to practise is called into question.”

As stated earlier in the course of this hearing, the panel has interpreted the “employer” referred to in the Code to apply not only to the Agency, but also to each “end user” Trust.

In its letters dated 16 July 2013 and 16 September 2013 the NMC informed you of a fitness to practise referral in relation to these charges. The formal Notice of Referral to the Investigating Committee letter was sent to you on 27 November 2013. The panel has therefore determined that your duty to disclose to your employers that you were the subject of NMC proceedings arose on 27 November 2013. The panel had no doubt that in or around June 2014, you were aware that you were the subject of NMC proceedings.

On 2 June 2014 you submitted an application form to the Sugarman Agency. You did not state either on the form or the accompanying CV that you were the subject of NMC proceedings. The panel therefore found this charged proved.

3.2.

That you had been dismissed by your previous employer, SEPT; FOUND PROVED

In your application form to the Sugarman Agency, dated 2 June 2014, a question asked: Have you ever been the subject of disciplinary action or undergoing disciplinary action? You ticked “No”.

Your CV sent to the Sugarman Agency made no mention of your dismissal from SEPT. Further, you signed a declaration that the information provided was to the best of your knowledge, true and correct.

Your e-mail to Mr 5, dated 7 August 2014 is of no relevance as this charge relates to June 2014. The panel was satisfied that there is no evidence that you made the necessary disclosures to the Sugarman Agency in June 2014. It therefore found this charge proved.

3.3.

That you had been previously dismissed by Central North West London NHS

Foundation Trust FOUND PROVED

In your application form to the Sugarman Agency, dated 2 June 2014, a question asked: Have you ever been the subject of disciplinary action or undergoing disciplinary action? You ticked “No”.

You stated that you understood this question to mean “Are you currently undergoing disciplinary action?” and you therefore ticked “No”.

In his evidence, Mr 5 said that you did not tell him about the NMC investigation or about your dismissal from CNWL. The panel preferred his evidence to your evidence.

Your CV sent to the Sugarman Agency made no mention of your reasons for leaving CNWL.

Your e-mail to Mr 5, dated 7 August 2014 was of no relevance as the charge relates to June 2014.

The panel was satisfied that there is no evidence that you made the necessary disclosures to the Sugarman Agency in June 2014. It therefore found this charge proved.

4. That your actions at charge 3 were dishonest in that you knowingly misrepresented the truth in each instance so as to conceal information from potential employers. FOUND PROVED

The panel applied the twofold test. It first determined whether by the ordinary standards of reasonable and honest nurses, your actions were dishonest. A nurse who does not disclose that he is subject to NMC proceedings and who, when asked whether he has ever been the subject of disciplinary action, answers in the negative by ticking the “no box”, is by these standards dishonest. The panel further considered that you were experienced in completing application forms and ought to have known that they should have to be fully and accurately completed.

The panel next considered whether you must have known that what you were doing was, by those standards, dishonest.

In your evidence you stated that you your reason for ticking “No” was because, as a non-native English speaker, you understood this to mean “Are you currently undergoing disciplinary action?” and that this was correct as you were not undergoing disciplinary

action at the time of completing the form. The panel found that your explanation lacked credibility. Although you asserted that you misunderstood the question you accepted that at no time did you seek clarification from the agency. Further, beneath the question, the form states, “If yes, please give details” followed by a blank space. The panel determined that had you wished to give a more detailed or qualified answer you could have done so there.

In his evidence Mr 5 said that you did not tell him about the NMC investigation or about your dismissals from SEPT or CNWL. The panel preferred his evidence to yours.

Further you purported to rely on the fact that you are not a native speaker of English. You acknowledged, however, that your educational studies from GCSE level through to your advanced degree (Masters) at University in England were all conducted in English. The panel found your use of English to be to a very high standard and that you were very articulate.

The panel determined that the onus is on a registered nurse to disclose fitness to practise concerns to any potential employing agency. You said in evidence that you were well aware of the specific duty to make disclosures to employers under paragraph 51 of the Code. The panel was satisfied that as a registered nurse you would have been aware of the significance of the information you were withholding, as this would be regarded as significant by the agency and of relevance to the Trust. The panel has therefore concluded that you must have realised that what you did was dishonest by the ordinary standards of reasonable and honest nurses and therefore found this charge proved.

Charge 5

5. In or around August 2014, failed to disclose to Central North West London NHS Foundation that you were: 5.1 the subject of NMC proceedings; FOUND PROVED

The panel has already considered paragraph 51 of the Code which states:

“51. You must inform any employers you work for if your fitness to practise is called into question.”

The panel interpreted the “employer” referred to in the Code to apply not only to the Agency, but also to the Trust as “end user” to which you were introduced and which employed you. The panel was satisfied that CNWL had overall management responsibility for your day to day practice and instructions and were in a position to dismiss you. The panel therefore found that you had a duty to make disclosures directly to CNWL when you were working there for the second time in August 2014.

You had an opportunity to disclose the NMC proceedings during an interview with CNWL on 5 August 2014.

You have not disputed that no disclosure was made to CNWL about your NMC proceedings or previous dismissals. In your evidence you said that you had attempted to make a disclosure to the Sugarman Agency by email of 7 August 2014, but that you were not under any duty to inform CNWL as ‘end user’. The panel found that you had an opportunity to disclose that information to CNWL at this stage. It determined that you had a duty to disclose that information to CNWL, in addition to disclosing this to the Sugarman Agency. The panel therefore found this charge proved.

5.2 That you had been dismissed by your previous employer, SEPT; FOUND PROVED

The panel was satisfied that CNWL was your employer. The panel found that you therefore had a duty to disclose your previous dismissal from SEPT to CNWL in addition to disclosing it to the Westmeria Agency. The panel was satisfied that no such disclosure to CNWL was made in relation to your previous dismissals. Further, you have admitted that no such disclosure has occurred with CNWL. The panel therefore found this charge proved.

5.3 That you had been previously dismissed by Central North West London NHS Foundation Trust FOUND PROVED

The panel found that that you had a duty to disclose your previous dismissal from SEPT to CNWL. You have admitted that no such disclosure was made. The panel therefore found this charged proved.

6 That your actions at charge 5 were dishonest in that you knowingly misrepresented the truth in each instance so as to conceal information from your potential employer. FOUND PROVED

When applying the objective test for dishonesty, the panel determined that that as set out in the Nursing and Midwifery Council’s The Code: Standards of conduct, performance and ethics for nurse and midwives (“the Code”), as a registered nurse you had a duty to be open and honest, a fundamental tenet of the profession.

In this context the panel found the evidence of Ms 3 to be significant. She stated, “We expect all staff to be open and honest…I think there is a duty on the registrant to disclose.”

When applying the subjective test for dishonesty, the panel had regard to your evidence. You told the panel that having made a disclosure to the Sugarman Agency by email of 7 August 2014, you were not under any duty to inform the CNWL as ‘end user’. The panel did not accept this proposition; it has found that the duty is to disclose to both the agency and the Trust.

In your email dated 7 August 2014 to Sugarman Agency you stated: “… There was no opportunity to discuss the reason for leaving that contract-which ended by way of dismissal, culminating in a referral to the NMC…However I feel it is particularly important to provide a written disclosure of the same…”

In your evidence you said that you were well aware of the specific duty to make disclosures to agencies as employers under paragraph 51 of the Code. The panel is satisfied that you had an opportunity to disclose this information at your interview with the Trust.

The panel determined that the onus is on a registered nurse to disclose fitness to practise concerns to his employer. The panel was satisfied that you were aware of the significance of the information you were withholding from CNWL. The panel therefore determined that this was a selective omission. Taking all of the above into account, the panel has concluded that you must have realised that what you did was, by the objective standard, dishonest. The panel therefore found this charge proved.

Charge 9

That you whilst a registered nurse 9. Between 17 July 2013 and 2 December 2014, failed to disclose to Westmeria Recruitment Ltd that you were: 9.1 the subject of NMC proceedings; FOUND PROVED

In a letter dated 17 July 2013 the NMC notified you that your fitness to practise had been called into question. The panel however did not consider that this letter gave rise to you being the subject to NMC proceedings.

The panel determined that you became subject of the NMC proceedings when the NMC notified you of this by a formal Notice of Referral on 27 November 2013. You have accepted that you became the subject of NMC proceedings on this date.

You completed the Westmeria Agency application form on 5 June 2013. You were not at that stage subject to NMC proceedings and you were therefore not under an obligation to disclose this information on your application form.

The duty arose when you were notified of the referral by letter dated 27 November 2013. The duty to disclose continued thereafter during the period 27 November 2013 to 2 December 2014. The panel therefore found this charge proved in that between 27 November 2013 and 2 December 2014 you failed to make the necessary disclosure.

9.2 That you had been dismissed by your previous employer, SEPT; FOUND PROVED

In your Westmeria application form dated 5 June 2014 there was a question “Have you ever been the subject of a professional misconduct proceeding, suspension from an employer or pending an enquiry either in the UK or abroad”. In response you ticked “No”. Further the application form required you to provide 10 years of work history and reasons for the gaps in your employment. You stated: “Please see CV attached”. Your attached CV did not refer to your dismissal from SEPT.

Furthermore you signed the declaration at the back of the form: “I declare that the information given is true and is not in any way intended to mislead. I am not aware of any condition medical or otherwise, that would affect or limit my performance or employment…I agree that I have given correct information and have not omitted relevant details…” This was clearly untrue. The panel therefore found this charge proved.

9.3 That you had been previously dismissed by Central North West London NHS Foundation Trust FOUND PROVED

In your application form you responded to the question: “Have you ever been the subject of a professional misconduct proceeding, suspension from an employer or pending an enquiry either in the UK or abroad”, by ticking “No”. Further the application form required you to provide 10 years of work history and reasons for the gaps in your employment. You stated “Please see CV attached”. Your attached CV did not refer to

your previous dismissal from CNWL. Indeed no reasons were given for your change of employment.

Furthermore you signed the declaration at the back of the form: “I declare that the information given is true and is not in any way intended to mislead. I am not aware of any condition medical or otherwise, that would affect or limit my performance or employment…I agree that I have given correct information and have not omitted relevant details…” This was clearly untrue. The panel therefore found this charge proved.

Charge 10

That you whilst a registered nurse 10. Between 17 July 2013 and 26 July 2013 failed to disclose to Hammersmith and Fulham assessment team West London that you were: 10.1 the subject of NMC proceedings; FOUND NOT PROVED

The panel found that you became the subject of NMC proceedings on 27 November 2013. There was no evidence before the panel that you were aware that you were the subject of NMC proceedings between 17 July 2013 and 26 July 2013. It therefore found this charge not proved.

10.2 That you had been dismissed by your previous employer, SEPT; FOUND PROVED

For the identical reasons given under Charge 5 above the panel was satisfied that Hammersmith and Fulham Assessment Team West London was your employer. The panel therefore found that you had a duty to make disclosures to the Trust about your dismissal from SEPT. Your CV supplied to the agency did not mention your previous dismissals.

It was your case that you did not believe that you had to make separate disclosure to the Trust as you regarded Westmeria Agency as “your employer”. You said that you believed that you had made disclosure to Westmeria but by mistake had misspelt the email address. The panel has therefore concluded that no disclosure was made to Westmeria Agency and that in any event the agency could not have passed the information to the Trust.

The panel was therefore satisfied that no disclosure has been made to this Trust and therefore found this charge proved.

10.3 That you had been previously dismissed by Central North West London NHS Foundation Trust FOUND PROVED

For the identical reasons given under Charge 5 above the panel was satisfied that Hammersmith and Fulham Assessment Team West London was your employer. The panel therefore found that you had a duty to make disclosures to the Trust about your dismissal from CNWL.

The panel was satisfied that no disclosure has been made to this Trust and therefore found this charge proved.

Charge 11

That you whilst a Registered Nurse 11. Between 14 October 2014 and 13 November 2014 failed to disclose to Cheam Recovery and Support Team that you were: 11.1 the subject of NMC proceedings; FOUND PROVED

For the identical reasons given under Charge 5 above the panel was satisfied that Cheam Recovery and Support Team was your employer. The panel therefore found that you had a duty to make disclosures to Cheam about your NMC proceedings. Your CV

supplied to the Westmeria Agency did not mention that you were subject to NMC proceedings.

The panel has already found that you became subject of NMC proceedings on 27 November 2013.

In his witness statement, read to the panel, Mr 7 said that you told him that you were to meet with the NMC and you “…said something like it was nothing to worry about and concerned an issue from the past”.

You had agreed the content of Mr 7’s evidence, but in your evidence you disputed that part of his statement and you said that you had told him of the NMC proceedings. Mr 7’s evidence, having been agreed and read to the panel, cannot now be tested before the panel.

The panel did not accept your account of this conversation and found that what you said to Mr 7 was inaccurate, incomplete and did not amount to disclosure that you were subject to NMC proceedings.

The panel was satisfied that no disclosure had been made to this Trust and therefore found this charge proved

11.2 That you had been dismissed by your previous employer, SEPT; FOUND PROVED

For the identical reasons given under Charge 5 above the panel was satisfied that Cheam Recovery and Support Team was your employer. The panel therefore found that you had a duty to make disclosures to Cheam about your dismissal from SEPT. Your CV supplied to the agency did not mention your dismissal from SEPT.

The panel was satisfied that no disclosure has been made to Cheam about your previous dismissal from SEPT and therefore found this charge proved

11.3 That you had been previously dismissed by Central North West London NHS Foundation Trust FOUND PROVED

For the identical reasons given under Charge 5 above the panel was satisfied that Cheam Recovery and Support Team was your employer. The panel therefore found that you had a duty to make disclosures to Cheam about your dismissal from CNWL. Your CV supplied to the agency did not mention your dismissal from CNWL.

The panel was satisfied that no disclosure has been made to Cheam about your previous dismissal from CNWL and therefore found this charge proved.

Charge 12

12. That your actions at charges 9 and/or 10 and/or 11 were dishonest in that you knowingly misrepresented the truth in each instance so as to conceal information from potential employers. FOUND PROVED

When considering whether your actions in relation to charges 9, 10 and 11 were dishonest, the panel has applied the twofold test to each charge.

When applying the objective test for dishonesty, the panel determined that as set out in the Nursing and Midwifery Council’s The Code: Standards of conduct, performance and ethics for nurses and midwives (“the Code”), as a registered nurse you had a duty to be open and honest, a fundamental tenet of the profession.

In regard to Charge 9

The ten year history was a part of the application form and is already present in the application form that the registrant returned to the Agency. You had dealt with that form

by writing on it “Please see CV attached”. The panel found that you did not return the form fully completed.

You had not produced any email showing if or when the completed ten year history form was sent to the agency.

You stated that you sent to Westmeria Agency a further fully completed ten year history form disclosing details of you two dismissals. You produced this form in your evidence.

In her evidence Ms 4 said that if the agency had received this version of the ten year work history produced, then: “Massive alarm bells would ring that somebody had been terminated twice, or dismissed twice, actually. Because it isn’t that common – it is quite a rarity for nurses to apply to us who have actually been dismissed”. She said that she had previously searched your file at the agency and could not see a completed ten year history anywhere. The file itself was checked during the hearing by both counsel and it was agreed that it does not contain a completed ten year history form.

Ms 4 further said that if the agency did become aware that a candidate was previously dismissed, it would act on that information by seeking references, obtaining a statement from the candidate and informing the end-user Trust in writing.

At the time of completing your Westmeria Application form on 5 June 2013, you were aware that you had been dismissed from two employers: SEPT and CNWL. In addition to the application form, your CV which the agency held on file made no mention of these matters nor of your NMC proceedings.

You told the panel that you believed that you had made disclosure to Westmeria Agency by sending your completed ten year history by email, but by a mistake had misspelled the correct e-mail address. The panel has seen a chain of five separate emails between Westmeria Agency and you, which had been sent to the correct email address.

You completed the Westmeria application form thoroughly and accurately, save for the questions about any previous misconduct findings, and your omissions in relation to your disclosure of 10 years of work history. In addition, you signed a Declaration of Truth at the back of the form. The panel determined that the onus is on a registered nurse to disclose fitness to practise concerns to his employers.

The panel found your actions to be dishonest.

In regard to Charge 10

It was your case that you did not believe that you had to make separate disclosure to the Hammersmith and Fulham and Cheam as you believed that you only had to make disclosure to Westmeria as “your employer”. The panel has however concluded that no disclosure was made to Westmeria Agency in any case and the agency could not have told the Trust. Further, your duty to disclose your previous dismissals to the Trust was in addition to that duty towards Westmeria agency.

You gave evidence that you were well aware of the specific duty to make disclosures to agencies as employers under paragraph 51 of the Code.

The panel found your actions to be dishonest.

In regard to Charge 11

For the same reasons as in regard to Charge 10. The panel found your actions to be dishonest.

The panel determined that the onus is on a registered nurse to disclose fitness to practise concerns to his employer. The panel was satisfied that you were aware of the significance of the information you were withholding from Westmeria, Hammersmith and Fulham and Cheam. The panel determined that these were deliberate omissions. Taking all of the above into account, the panel found your actions to be subjectively

dishonest. It has therefore found dishonesty proved in relation to all three charges both individually and cumulatively.

Application for an interim order The panel determined that it would not be possible to conclude the hearing today and that this hearing would be adjourned part-heard. The panel was aware that you are currently subject to an interim conditions of practice order and invited Mr Dowlman for submissions in relation to the suitability of such an order.

Mr Dowlman invited the panel to change the current order to an interim suspension order on the grounds of the public interest to protect the reputation of the profession and to declare and uphold proper standards of conduct. Mr Dowlman submitted that the panel has found 10 charges proved, which included a number of acts of dishonesty. Mr Dowlman submitted that a conditions of practice order is no longer proportionate or appropriate.

You accepted that an interim order is necessary in your case, but you opposed the necessity of an interim suspension order. You submitted that your clinical practice is not in question and that there are no public protection concerns. You submitted that the necessity for an order on the grounds of being in the public interest alone had not reached the high threshold required, and that you were working safely under the current order. You told the panel that an interim suspension order would affect you both financially and professionally as it would not allow you to continue to practise as a nurse and demonstrate your remediation.

The panel heard and accepted the advice of the legal assessor.

The panel considered that the current conditions of practice order was appropriate and proportionate, and satisfies the public protection concerns and public interest. The panel did not consider that its findings on facts had altered the circumstances of the case. Accordingly, the panel determined that it would not replace the interim conditions of practice order. That concludes this determination.

On resuming dates: 18 – 19 – 20 January 2016 Decision and reasons on misconduct and impairment: Mr Amavih-Mensah, Having found charges 1, 2, 3, 4, 5, 6, 9, 10.2, 10.3, 11, and 12 proved, the panel then considered whether your actions amounted to misconduct and, if so, whether your fitness to practise is currently impaired by reason of that misconduct.

The panel considered all the oral and documentary evidence adduced in this case. It also took into account the submissions of Mr Edenborough, on behalf of the NMC, and those made by you. It had particular regard to your evidence given at this second stage of the proceedings. The panel accepted the advice of the legal assessor.

Mr Edenborough invited the panel to consider first the matter of misconduct. He submitted that a number of instances of dishonesty have been found against you, which indicated a pattern of behaviour. These involved six different occasions between 2011 and 2014 when you failed to inform various employers of your previous dismissals and of the NMC proceedings. Mr Edenborough referred the panel to the case of Parkinson v Nursing and Midwifery Council [2010] EWHC 1898 (Admin) in which it was highlighted how dishonesty is always a serious matter. Mr Edenborough reminded the panel that it had found repeated instances of dishonesty relating to your applications for employment as a registered nurse. He referred the panel to the fourth bullet point in the preamble of the NMC The Code: standard of conduct, performance and ethics for nurses and midwives (the Code, 2008) which requires all nurses to be ‘open and honest, act with integrity and uphold the reputation of your profession’. Mr Edenborough submitted that your dishonest conduct constituted a fundamental breach of the Code and was so sustained as to be likely to undermine the reputation of the profession and the confidence that members of the public have in it.

In relation to impairment, Mr Edenborough again referred the panel to the case of Parkinson and how it emphasised the difficulty of remedying dishonesty. He submitted that your conduct could affect public confidence in the profession: it prevented your past employers from making a well-informed decision and from making a proper assessment

of any risks involved in your practice. Mr Edenborough acknowledged that there have been no questions regarding your clinical practice. Nonetheless he submitted that because of your dishonest conduct there must be an element of risk in the future which becomes more acute when elderly patients and those suffering dementia are involved.

Mr Edenborough referred the panel to the case of Nicholas-Pillai v General Medical Council [2009] EWHC 1048 (Admin) and its relevance to your conduct during the hearing. This was relevant to the content of your email of disclosure dated 16 October 2015 to your latest employer (Service Care Solution Recruitment Agency). In that email you wrote: ‘Whilst a finding of fact in respect of the historical allegations was made, it did not consider that it altered the circumstances of the case and or that my current fitness to practice [sic] has been judged to be impaired.’ Mr Edenborough submitted that this email was misleading, minimised the allegations and put a gloss on the then current position. Mr Edenborough further submitted that a reference from (Dr 10) dated 3 November 2015 was made without the knowledge of these proceedings.

You told the panel that it had never been your intention to be dishonest with your recent employers. You understood the need to be honest and how public confidence can be eroded by failing to make relevant disclosure. You stated that you understood that dishonesty is a serious matter, but believed that the ‘conduct being complained of is remediable’. You stated that you have ‘sought to put things right’ by demonstrating insight, by being open with your recent employers and informing the relevant recruitment agencies with whom you are engaged of these proceedings. You stated that you have taken remedial steps. You said that your fitness to practise is not impaired and that the suggestion of continued dishonest behaviour on your part ‘is not made out’. You said that you have been working since your dismissal and have complied with the interim conditions of practice imposed on your registration. You submitted that there was no evidence of real risk of harm to patients nor that public confidence has been undermined and that you are of good character in the sense that you have no criminal record. On the contrary you stated that you have provided the panel with evidence of good practice, that you have engaged with these proceedings and that you have made relevant disclosures in your recent job applications. In regard to the suggestion that your email of disclosure to your latest employer, dated 16 October 2015, is misleading in

relation to the panel’s findings in October 2015, you said that this was not your intention and pointed out that English is not your first language. Further in response to the criticism raised in relation to the letter of reference from (Dr 10) which was written without knowledge of the panel’s findings of facts in October 2015, you stated that at the time you requested it the panel had not made such findings. You had requested a written reference from (Dr 10) for general purposes and it was not initially intended for these proceedings. Further when you obtained the reference letter you did not think to go back to the author of the reference letter and inform him of the panel’s findings as you assumed that, having informed your manager of these, (Dr 10) would also have been aware of them. You referred the panel to the case of PSA v (1) GMC (2) Uppal [2015] EWHC 1304; CHRE v NMC and Paula Grant [2011] EWHC 927 (Admin); and Cheatle v GMC [2009] EWHC 645 (Admin).

The panel first considered whether the facts found proved amounted to misconduct. It was mindful of its findings relating to the multiple instances of similar dishonest conduct. These involved various attempts to misrepresent the truth to different employers in relation to your previous dismissals and the NMC proceedings. Your conduct concerned five potential employers. The panel found that, by acting as you did, you prevented potential employers from reaching a well-informed decision by deliberately concealing relevant information which would have had a bearing on the assessment of any risks in your practice. Although there were no concerns raised about your clinical practice, the panel concluded that your dishonest conduct was serious in particular because it directly involved your responsibility as a nurse and it was repeated on multiple occasions between 2011 and 2014. The panel found that your conduct was contrary to the standards expected of a registered nurse and impacted on public confidence in the profession. The panel was satisfied that your conduct indicated a pattern of dishonest behaviour and as such it also raised concerns as to public protection matters.

The panel found that you had breached the following parts of the Code (2008):

Preamble - 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 the profession.

In particular the following paragraphs are relevant:

Paragraph 51 - You must inform any employers you work for if your fitness to practise is called into question.

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

At the time of the facts found proved you were an experienced nurse with two degrees a BSc (Hons) Management, 2004, University of Hull and an MSc Mental Health Nursing, 2007, University of Essex. In the course of the hearing you displayed a very good command and understanding of spoken and written English. The panel was satisfied that you were well aware of the standards expected of you, especially the need to be honest and truthful, and that your actions fell seriously short of what is expected of a registered nurse. It determined that, individually and cumulatively, your actions amounted to misconduct.

The panel then considered whether your fitness to practise is currently impaired by reason of that misconduct.

The panel was mindful that impairment has been defined by the NMC as a registrant’s suitability to remain on the Register without restriction.

It took into account its findings on the facts and misconduct. The panel bore in mind its duty to protect patients and the wider public interest, including the need to uphold proper standards of practice and of behaviour and to maintain public confidence in the profession.

The panel concluded that your past misconduct which involved repeated dishonesty breached fundamental tenets of the profession, namely honesty and integrity, and

brought the profession into disrepute. It also had the potential to raise public protection concerns.

The panel then considered whether in the future there is likely to be a repetition of similar conduct. The panel took into consideration matters such as insight and remorse and also whether your conduct was capable of remedy; whether it has been remedied, and whether it is likely to be repeated.

You have engaged with these proceedings and you gave evidence. However, in your evidence you appeared not to accept the panel’s findings of dishonesty made against you and suggested that it all happened ‘by mistake’. Although you have expressed an understanding of the seriousness of dishonesty as a general abstract concept, you demonstrated little or no insight in to your actual dishonesty. You seemed to have distanced yourself from the conduct found proved. You have not apologised for it and have not shown an understanding of how that conduct could impact on colleagues, patients, the reputation of the profession and the NMC as regulator. You were evasive and gave lengthy unfocused responses to questions.

In regard to your email dated 16 October 2015, produced at this stage of the hearing, the panel considered that the paragraph quoted above was misleading in that it could give the impression that the panel had made a finding that your fitness to practise was not impaired.

You put before the panel a number of documents and reference letters which made positive comments about your clinical practice and integrity. However, it was not clear to what extent the authors of those references had been made aware of the panel’s findings. In particular (Dr 10)’s reference was provided without knowledge of these proceedings. In any event the panel considered that the weight of the evidence of good clinical practice on your part is severely undermined by the findings of repeated and sustained dishonesty made against you. These findings demonstrated a pattern of deceitful behaviour on your part and raised serious questions about your attitude and integrity.

The panel is aware that dishonesty is difficult to remedy, especially when repeated and sustained over a prolonged period of time. You acted in your own interests by not disclosing relevant information to your then potential employers and secured nursing posts by way of deception. The panel was not satisfied that you have developed insight into your past misconduct. Although in your evidence you described yourself as being methodical and meticulous and indicated that you have taken appropriate disclosure steps in your recent dealings with employers and agencies, in the light of your lack of insight the panel cannot be satisfied that there will be no repetition of your misconduct.

In the circumstances the panel cannot be satisfied that such misconduct would not be repeated in the future.

Your misconduct was so serious that the panel has concluded that your fitness to practise is currently impaired.

The panel is satisfied that the need to protect the public, to uphold proper professional standards and public confidence in the professions and in the NMC as the regulator would be undermined if a finding of impairment were not made in this case.

The panel has therefore concluded that your fitness to practise is currently impaired by reason of your misconduct.

Decision and reasons on sanction: Mr Amavih-Mensah, Having determined that your fitness to practise is currently impaired by reason of your misconduct, the panel considered what sanction, if any, to impose.

In considering the issue of sanction, the panel had regard to Mr Edenborough’s submissions and those made by you. The panel took account of all the documentary and oral evidence before it. In particular it had regard to your evidence given at this stage of the proceedings. The panel took into account also the NMC’s revised Indicative Sanctions Guidance (ISG) (June 2012).

Mr Edenborough referred the panel to its previous decisions and to his submissions on misconduct and impairment. He referred also to the ISG. He reminded the panel that, in reaching its decision on this matter, it must act proportionately taking account of your interests and the public interest.

You provided the panel with a bundle containing your most recent emails of disclosure to the recruitment nursing agencies with whom you are engaged and a number of reference letters. You stated that you understood the need to be open and honest and to be compliant with the requirements of the nursing profession. You stated that you have taken steps to ensure that the failings found proved were not repeated. In reading through the panel’s decision on misconduct and impairment, you said that you had realised that you were ‘at fault’ and that you accepted full responsibility. However upon questioning by the panel, you stated that you accepted that in completing your application forms you had made mistakes but that you did not intend to be deceitful. Although you accepted the panel’s findings in relation to your failings, you maintained that you did not intend to be dishonest. You stated that you were sorry that your failings have been interpreted in this way.

You said that you have continued working as a registered nurse and reminded the panel that, upon adjourning the hearing in October 2015, it had found an interim conditions of practice order was sufficient to address public protection and the public interest

concerns. You reiterated that you have taken steps to remedy your conduct. You referred the panel to the most recent written references you have produced at this stage of the proceedings. You asked the panel to be proportionate and referred it to the mitigating circumstances in your case and to the potential adverse impact of any sanction on you and your family. You referred the panel to the NMC ISG and submitted that the panel should impose no sanction or the least restrictive sanction.

The panel accepted the legal assessor’s advice.

The panel was mindful of its duty to serve the public interest. This includes not only the protection of the public, but also maintaining proper standards of conduct and behaviour and upholding the reputation of the profession and the NMC as regulator.

The panel recognised that it must apply the principle of proportionality, balancing the public interest with your own interests, and taking account of the aggravating and mitigating factors in the case.

The panel accepted that the purpose of any sanction is not to be punitive, although it may have a punitive effect. The purpose of sanctions is to protect the public from those who are not fit to practise, to maintain proper standards of conduct and to uphold confidence in the profession and the NMC as its regulator.

In reaching its decision, the panel as an independent body exercised its own professional judgment and took into account the NMC ISG.

The panel considered the aggravating features. These involved multiple instances of dishonest conduct between 2011 and 2014. You made no admissions to the dishonesty found proved and continued to deny this even at this stage of the proceedings. You displayed a continuing lack of insight in respect of the dishonesty found proved. Although at this stage of the proceedings, you made a qualified apology for your conduct, you again denied that you intended to be dishonest, thereby rejecting the panel’s findings. Your dishonesty was deliberate, persistent and sustained. You were an experienced and educated nurse, well aware of what was expected of you. Your

dishonest conduct in relation to the multiple incidents found proved was arrogant and showed a disregard for the impact of your actions on potential employers’ assessment of risk and on the reputation of the profession. By acting as you did you abused your position of trust. Because of your persistent and sustained dishonest conduct and your current lack of insight the panel had concerns regarding your attitude and ability to understand fully your responsibility as a registered nurse. Your conduct raised serious concerns regarding public protection and public interest matters.

The mitigating factors are that you have engaged with these proceedings. The references refer to your good clinical skills and nursing practice, albeit in each case they referred to your services for only a limited period of time. There is no evidence before the panel of any subsequent incident. The panel had regard to the evidence about your personal financial circumstances including your responsibilities for others.

The panel first considered whether to take no action. This would be wholly insufficient. The misconduct found proved is so serious that it demands the imposition of a sanction.

The panel then considered a caution order. Your misconduct was repeated over a significant period of time and it is compounded by your continuing lack of insight. This misconduct cannot properly be regarded as being at the lower end of the spectrum of impaired fitness to practise. Accordingly a caution order would be insufficient. It would not protect the public nor would it address the need to protect the public interest in maintaining confidence in the profession and upholding proper standards of conduct and behaviour.

The panel then considered a conditions of practice order. There were no apparent concerns about your clinical practice as a registered nurse but the case concerned your attitude and behaviour. No conditions of practice could be formulated which would address the attitudinal aspects of this case. A conditions of practice order would not be sufficient to protect the public nor would it meet the wider public interest.

The panel next considered a suspension order. You abused your position of trust; showed lack of regard for others in the profession; you acted dishonestly on multiple

instances, breached fundamental tenets of the profession and damaged its reputation. Although there are positive references about your clinical practice, these have limited weight against the background of sustained dishonesty and your continuing lack of insight. The dishonesty found proved is so serious that it is fundamentally incompatible with your continuing to remain on the register. In these circumstances a period of suspension would not be sufficient to protect the public nor would it send out an appropriate message to the public and the profession. Such an order would be insufficient as a sanction.

The panel therefore concluded that the only sufficient and proportionate sanction is a striking-off order. The need to protect the public and to uphold public confidence in the profession could not be achieved if your name were to remain on the register.

The panel was satisfied that these considerations outweighed any consequential financial hardship or other impact that a striking-off order may have on you

Your name will be removed from the NMC register. You may not apply for restoration until five years after the date that this decision takes effect. This decision will be confirmed to you in writing. The order will take effect 28 days from the date when notice of it is deemed to have been served upon you. You have the right to appeal this decision.

Decision and reasons on interim order: Mr Amavih-Mensah,

The panel considered whether to impose an interim order to cover the appeal period of 28 days or, if an appeal is lodged, the time necessary to cover that appeal.

Mr Edenborough, on behalf of the NMC, applied for an interim suspension order of 18 months to cover the appeal period of 28 days and the resolution of any appeal. He submitted that, given the panel’s decision, such an interim order is necessary to protect the public and is otherwise in the public interest.

You submitted that the panel should not impose an interim suspension order. You stated that this would prejudice your ability to practise, to remedy your failings and would and have an impact on your personal circumstances. You reminded the panel that when it adjourned proceedings in October 2015, it considered an interim conditions of practice order to be proportionate and sufficient to address the concerns raised. You stated that you complied with that order. You asked the panel to balance the public interest with your interests and to apply the principle of proportionality.

The panel accepted the advice of the legal assessor.

The panel first considered whether an interim order is necessary in the circumstances of this case. It had regard to its findings at both the impairment and sanction stages. The panel identified at those stages that there was a risk of repetition and lack of insight. If the past conduct were repeated, it could place patients at risk of harm and would impact on the reputation and standards of the profession. The panel therefore concluded that an order was necessary on the grounds of public protection and was otherwise in the public interest.

The panel considered an interim conditions of practice order. It was mindful that an interim conditions of practice order was confirmed by this panel upon adjourning the hearing in October 2015. However the circumstances have now changed. An interim conditions of practice order would not be sufficient to satisfy the wider public interest

and to address the risks identified for the same reasons that this panel excluded a conditions of practice order in its substantive determination on sanction.

The panel, therefore, concluded that these matters were so serious that only an interim suspension order could satisfy the public interest concerns in this case and the need to protect the public.

The panel acknowledged the impact that such an order will have on your personal circumstances. However, the panel was satisfied that the imposition of an interim suspension order is proportionate and that any other order would be inconsistent with its decision to strike your name off the NMC register.

The panel therefore directed that your registration be suspended forthwith, for a period of 18 months. Accordingly your registration will be suspended from today.

The substantive decision removing your name from the register will take effect 28 days from the date when notice of that decision is deemed to have been served upon you. If, in the interim, you exercise your right of appeal, this interim order suspending your registration will continue to have effect until that appeal is determined.

This decision will be confirmed to you in writing.

This concludes these proceedings.

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Beverly Amavih-Mensah, Mark - NMC

Conduct and Competence Committee Substantive Hearing Dates: 18 – 19 – 20 January 2016 Resuming from: 9-12 June 2015, 23-26 June 2015, and 7-15 October...

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