Part(s) of the register: Registered Nurse sub part 1 Mental Health (November 2007)

Transcription

1 Conduct and Competence Committee Substantive Hearing Dates: January 2016 Resuming from: 9-12 June 2015, 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: Panel Members: Legal Assessor: Panel Secretary: Misconduct John Matharu (Chair/Lay member) Cynthia Mendelsohn (Lay member) Mary McCartney (Registrant member) Robin Hay Aneliya Kolarova (9-12 June 2015, June, 7-13 October 2015) Josh Dutton (14-15 October 2015) Bianca M. Mancini ( January 2016) Registrant: Present and represented by Mr Mukhtiar Singh (9-12 June 2015 and June 2015) Present and not represented (7-15 October 2015) Present and not represented ( January 2016)

2 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

3 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 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.

4 7. On 8 October 2014 sent an 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 / 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 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

5 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.

6 Background Mr Amavih-Mensah, You were entered on the register as a mental health nurse in the United Kingdom (UK) in November 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 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

7 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.

8 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 He would therefore be unavailable between 14:00 and his return on 23 June 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 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 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.

9 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 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 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.

10 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 dated 8 October 2014 sent to Ms 6 disclosing an 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 on 7 August 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 . 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 or not. Mr Singh invited the panel to consider the times when an intended recipient does not receive post, text messages or s. 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 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

11 invented an . 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 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 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 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 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 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 of 8 October 2014 is an

12 assertion that the of 7 August 2014 was sent. If this is not true, it must have been dishonest and fraudulent, and that the 8 October 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 of 7 August By not disclosing this matter, contrary to the Code, there is a prima facie case in regard to the allegation of dishonesty. The 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

13 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 account showing that an entitled confirmation of contract and disclosure was sent to Mr 5 on 7 August The only other evidence before the panel is that of Mr 5 in which he stated that he had not received the 7 August 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 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.

14 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 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

15 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.

16 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 In the Confidential Form A dated 6th November 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.

17 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

18 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 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 The panel had no doubt that in or around June 2014, you were aware that you were the subject of NMC proceedings.

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

20 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 to Mr 5, dated 7 August 2014 was of no relevance as the charge relates to June The panel was satisfied that there is no evidence that you made the necessary disclosures to the Sugarman Agency in June 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

21 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

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

23 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 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 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

24 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 You have accepted that you became the subject of NMC proceedings on this date. You completed the Westmeria Agency application form on 5 June 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.

25 The duty arose when you were notified of the referral by letter dated 27 November The duty to disclose continued thereafter during the period 27 November 2013 to 2 December 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

26 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 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 It therefore found this charge not proved 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.

27 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 e- mail 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 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

28 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 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

29 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 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

30 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 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 , but by a mistake had misspelled the correct address. The panel has seen a chain of five separate e- mails between Westmeria Agency and you, which had been sent to the correct address.

31 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

32 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.