Sharp v Nursing and Midwifery Council [2011] All ER (D) 231
(Jul)
Queen's Bench Division, Administrative Court (London)
Holman J (judgment delivered extempore)
20 July 2011
The appellant was a registered nurse. During 2006 and until
March 2007, he was employed as clinic manager of an orthopaedic
out-patient department of an NHS authority. Between November 2006
and March 2007, the appellant claimed to be sick and unable to
work. It later emerged that, on three consecutive nights in
December, he had actually worked as a shift nurse for which he had
been paid. The appellant's employment terminated. An investigation
was commenced by the respondent Nursing and Midwifery Council
(NMC). One source of evidence provided was a witness statement from
AS, dated December 2008, with attached exhibits of the relevant
computer records. AS was the payroll team manager for the NHS
authority. She stated that the appellant had worked shifts over the
nights in question. Her witness statement gave a narrative
explanation of the entries in the computer records.
The investigation resulted in the appellant being formally
charged with:
- acting dishonestly by working shifts while claiming to be off
sick on the three specified nights in December 2006
- failing, in various ways, to adhere to the sickness absence
policy.
It was contended that, in light of those allegations, his
fitness to practise was impaired by reason of misconduct.
The NMC's panel of the conduct and competence committee
considered the charges during a hearing that lasted for two days.
Two witnesses gave oral evidence and written material was
considered by the panel. The panel concluded that the appellant's
fitness to practise was, as of that day, impaired. The panel went
on to consider the NMC's 'indicative sanctions guidance for panels
of the conduct and competence committee' (NMC's guidance). In its
decision, the panel noted that in the information that it had that
had been produced by AS, there was evidence that the appellant had
worked for four additional, non-consecutive, shifts in January 2007
preceding his written notice of resignation and that, therefore,
there had been a repeat of his misconduct. That evidence had not
been provided in AS's witness statement but was available from the
exhibited computer records. They stated that that evidence
contradicted the appellant's assertion that if he had been
dishonest, why would he have only worked for three nights and not
more for personal gain. They determined that the appropriate
sanction, in the absence of questions as to the appellant's
clinical practise or competence but where he had acted dishonestly,
would be a suspension order. The appellant appealed.
He submitted, inter alia, that in deciding what sanction to
impose, the panel had wrongfully taken into account what had
appeared to them to be four further and later occasions of
dishonest behaviour which had not been the subject of the charge
and should not have been taken into account at all.
The appeal would be allowed.
The detective work that had been carried out by the panel had
the potential to have, and might have, aggregated their overall
view of the appellant's misconduct and dishonesty. The NMC
guidance, in its list of possible mitigating factors, referred to
an isolated incident. The misconduct charge might have been viewed
as three separate incidents or as one continuous incident over
three separate nights. Clearly, if account had been taken of
further working in January, it would have been less easy to regard
those nights of working as a separate, but nevertheless single,
incident since those nights were not consecutive. The panel had
therefore more than doubled the number of incidents from either one
to two, or from one to several. The panel had, in part, addressed
the NMC guidance when they had said that the incidents of
misconduct were not isolated. At that point, the panel had moved
from consideration of an isolated incident to the separate question
of whether there had been a repetition of the behaviour. There was
a clear impression that the panel might have been considerably
influenced by their view that the incident had not been isolated in
its nature. On the evidence, there had been a serious error by the
panel in the instant case by their having conducted their own
detective work and not having discussed their findings with either
the case presenter or the legal assessor and then having taken
account of that detective work in deciding the appropriate
sanction.
The existing decision of the panel could not stand because it
had been significantly influenced by a factor it should not have
taken into account. The appeal would be allowed and the case
remitted to the panel.
Nicholas-Pillai v General Medical Council [2009] All ER
(D) 67 (Jun) distinguished; R (on the application of Shankar) v
General Medical Council [2006] All ER (D) 187 (Oct)
considered.
Reproduced with kind permission of LexisLibrary.
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