Ballesteros v Nursing & Midwifery Council

The Panel then went on to say that although the conduct in question could be the subject of what the Panel call “remediation” or “remedy”, the Panel here was not satisfied that adequate steps had indeed been taken to remedy the position. They said:

On behalf of the appellant Miss Maudsley (who presented her case most ably and succinctly) stressed a number of points. Firstly, she sought to challenge the findings of the Panel in relation to Mr Martin’s evidence. She submitted that Mr Martin, having regard to the evidence as set out in the transcript, was confused about the two sets of misconduct. He thought that there was just one set of misconduct, namely relating to the events at the University College London Hospital and that the criminal charges had indeed been brought in relation to that sequence of events. However, it seems to me that the Panel were entitled to give the weight that they did to Mr Martin’s evidence. It is plain that Mr Martin was not informed by the appellant that indeed there were two sets of relevant dishonest behaviour, firstly that at University College London for which no criminal charges had been pressed in the circumstances to which I have alluded, and then shortly thereafter the appellant, as I described, completed false time sheets. It is not entirely clear why the appellant had not been fully candid with Mr Martin but the inescapable inference is that he was not fully in the picture and that was largely the responsibility of the appellant who had called him as a witness. Mr Martin was then left in the embarrassing position that he had to concede in cross-examination that he had not been told the full story by the appellant. It is plain from the tenor of his evidence that he was much surprised by that. Therefore even allowing for the evidence given by Miss Hawsey, which made plain that she indeed knew all of the circumstances, the Panel were entitled to give weight to the fact that a significant witness on the part of the appellant before the Panel had not had the full story told to him and was put in a difficult position. That was a matter to which they could have regard in deciding just how candid and honest the appellant was behaving, even after all these matters which founded the disciplinary proceedings against her, were behind her. Therefore it does not seem to me to be a fair criticism of the Panel that they gave the weight to that evidence (which, I stress again, they heard and I have not heard) that they did in their decision.

The second main element under impairment related to the area of remediation – as it was labelled – to the risk of future misconduct, having regard to all the circumstances. Again Miss Maudsley points to the fact that the appellant was, on all the evidence, a highly competent and valued nurse; that she had had no history of dishonesty in 16 years of practice and it was only due to those very serious extenuating circumstances that she committed the misconduct in which she had engaged. Also, since 2007 she had not committed any further misconduct of that nature or indeed at all; she had shown remorse and had regretted what she did. However, the Panel were well aware of all those facts and they did refer in their decision to each of those circumstances. Nonetheless, they concluded that the appellant still did not have sufficient insight into her offending conduct and therefore the risk that she might in future engage in similar behaviour could not be discounted and that the protection of the public needed a finding that her practice was impaired.

I have to bear in mind again on this aspect that I do not have the benefit of having heard that primary evidence given by the appellant and others at the hearing. Therefore the Panel, on an issue of this kind, does have a great advantage over this court. However, Mrs McDonald, on behalf of the Midwifery Council, referred me to certain passages in the transcript that she submitted supported the Panel’s conclusion. The appellant was asked at one point in cross-examination how the recognition of her misconduct made her feel about herself as a nurse. It does seem to me that the answer that she gave suggested strongly that the focus was still on her and on the circumstances in which she had come to commit the very serious misconduct that I have described. She did have an opportunity there to say that whatever those circumstances might have been what she had done was plainly wrong and that she had come to appreciate that conduct like that could not be tolerated, and that she fully understood that in future any temptation to behave in that way had to be resisted because it was simply wrong to do what she had done. I make allowances – no doubt the Panel made allowances – for the stressful circumstances in which she found herself at that stage. Nonetheless, that was the answer she gave and the Panel, even making due allowance for the very considerable stress under which she must have been under at this hearing, drew the inference that they did. It does not seem to me that I, sitting in this court, can really say that that inference from an answer of that kind was one that no reasonable Panel could have made and with which I should interfere. Similarly, a member of the Panel asked her a direct question later on about what was going through her mind when she was certified as sick and then was actually looking after patients at another hospital. It appears that there may have been a period of self-certification for sickness but at a later point a general practitioner must have been induced by the appellant to sign a certificate that she was not fit to work. Therefore the appellant was either deceiving the general practitioner as part of her general strategy or she was to some extent unwell but was still continuing to work with patients. Again there was an opportunity for her in answer to say, “Well, I was cheating the general practitioner; I realise that was entirely wrong and it was simply the way that I wanted to get the money given my mother’s situation. I wasn’t sick at all; no patients were at risk.” Alternatively she could have said, “Well I actually was pretty unwell but because of the financial pressures I went out and worked and I of course realise that it was entirely wrong to do that because if I was unwell to the extent of obtaining a certificate I should not have been working at all. I should have been recovering.” Again the answer really is not in those terms and again making as much allowance as I possibly can for the circumstances in which she was responding to questions, I cannot say that the Panel acted unreasonably by attaching weight to answers of that kind. The third example was put by the same Panel member in which she was exploring how the appellant might respond in future if she found herself under the same financial pressure. Here was a second opportunity, if not even more than a second opportunity, for the appellant to say, “Well, you know, it’s really unthinkable. I’ve now come to appreciate that my behaviour was totally wrong and it would not matter what the financial circumstances were; I would never do that again.” Her immediate response rather focussed on whether indeed she would find herself in that sort of position in the future where she had insufficient financial resources to meet some pressing need. The member of the Panel pressed her further obviously because she was not entirely happy with that response and in fairness the appellant did recover to some extent. However, it may be that the Panel thought that the first answer was the spontaneous one that continued to reflect a worrying potential absence of real understanding of what she had done.

Therefore in those circumstances there is no alternative open to me, given my appellate jurisdiction, but to conclude that this Panel had fairly and squarely before it all the material circumstances relating to impairment and took them into account but concluded, by virtue of the matters that I have gone through in some detail, that the appellant’s fitness to practise was indeed impaired. Notwithstanding the forcefulness of the submissions of Miss Maudsley I do not believe at the end of the day the points that she made can undermine the Panel’s finding in relation to impairment.

Moving now to sanction, the Panel first of all considered that the appellant’s behaviour could have caused indirect patient harm because it would have resulted in a significant loss of resources. Miss Maudsley responded to that by pointing out that the appellant had paid back the amount that she had wrongly taken. That indeed is very much to her credit and was no doubt taken into account by the criminal court when deciding the just disposal of the criminal charges. Nonetheless, from a regulator’s perspective she did indeed have the potential of causing a significant loss of resources because her conduct might not have been detected. I agree that on the facts of this case there was probably a low probability because the fraud was not that sophisticated but again it may have escaped detection because those working at the other hospital may not have identified her as they did. The Panel then went on to say that she had made a full and early admission that showed some insight, but the Panel said they were satisfied that she had not been open and honest about her misconduct with her employers. They said that on initially being questioned by three of the people in the organisation about her employment contracts and shift work she had an opportunity to tell the truth and in fact lied to each one of them. That is not without relevance. It does not seem to me that the Panel could be fairly criticised for taking that into account. On the one hand they gave credit for the plea at the Panel’s own hearing, but did point out that she had initially tried to cover up what she had done which remained a worrying aspect.

The Panel then went on to say that she did not have full insight into the consequences of her misconduct, specifically the impact of her behaviour on patients, colleagues and the service in which she was working. I have already referred to the criticisms that are made of that finding in the context of impairment and in my view the answer is the same, that there was material before the Panel which justified them in reaching that conclusion. It is also said that it was not an isolated incident, but deliberate dishonesty over a period of many months, a statement that was also true. They gave credit for the fact that the appellant was a competent nurse with a previous good history and there has been no repetition of this behaviour since the incident. She had made an apology and at all material times she had been acting under considerable emotional and financial pressure. On the basis of those circumstances Miss Maudsley said that no reasonable panel could have required the most extreme sanction in this case, namely removal from the register, that that really was disproportionate having regard to all the circumstances.

However, in my judgment in this case it is plain that the most decisive factor that weighed with the Panel was the fact that after she had been detected in acts of serious misconduct at University College Hospital, after that institution had declined to press criminal charges – which would have been very serious given the nature of that conduct – the appellant should have appreciated that what she had done was utterly wrong (and she herself was expressing that she had put that behind her), very shortly thereafter she engaged in another sequence of quite serious dishonest behaviour. It does seem to me that seeking to extract what the Panel may have thought in this case, that had indeed her dishonesty stopped at the University College Hospital, a lesser sanction in all probability would have been imposed. What shifted the Panel was the further serious misconduct – dishonesty – against the background that I have described. Taking account of the other features, namely the worrying concerns about lack of insight into her conduct, the Panel therefore concluded that the risk was too great, that there was indeed a risk for the future that conduct of this kind or similar in nature could be committed by this appellant and that that would be contrary to the public interest, including the safety of patients. Again it seems to me that this court cannot interfere with that conclusion. It was a perfectly rational conclusion to reach, that the second set of dishonest behaviour caused real concerns about this particular appellant. Having had the full opportunity to mend her ways thoroughly she declined to take it, but set about again a course of serious dishonesty.

Therefore it does not seem to me that this court, exercising its appellate jurisdiction, could conclude that the imposition of the sanction, draconian and devastating though it obviously is to the appellant, was not justified in this case. Miss Maudsley also referred to Article 8 of the European Convention on Human Rights and contended that that Article was engaged because of the actual effect upon the appellant’s family of a decision in effect to prevent her working in her chosen profession. No authority was cited to the court that Article 8 is engaged in circumstances of this kind. There have been many cases where decisions of disciplinary bodies have been challenged, but I am not aware of any challenge that has been based upon Article 8 by reason of the indirect effect that decisions of erasure or removal might have either on the individual’s private life or on the family life more generally. Therefore, in my judgment, Article 8 is unlikely to be engaged. Article 6 is often invoked in this context but there is no argument about the fairness as such of the proceedings before the Panel. Sometimes in the present context Article 1 Protocol 1 of the Convention is invoked but it is well known that the justifications for such interference with enjoyment of property are very broad indeed and that line of challenge very rarely, if at all, succeeds. In any event, even if Article 8 were engaged, the exceptions under Article 8.2 refer to matters of health and safety and it seems to me that the decision properly taken under provisions of national law that are intended to protect public safety and protect the public interest more generally have been in this case satisfied and therefore Article 8.2 would in any event apply even if Article 8, contrary to my first impression, was engaged.

Therefore for these reasons I decline to accept the points cogently argued by Miss Maudsley for the appellant and must dismiss this appeal.