Ayettey v Nursing and Midwifery Council

The remitted case was the subject of a hearing on 26 to 30 September 2016 (“the second hearing”) before the second panel. A charge sheet submitted to the second panel included all four charges. As was acknowledged by Mr McDonald, the NMC’s case presenter, this should not have happened: at that stage the second panel should have been informed only of charges 1 and 2.

Mr Betts submitted that the second panel must consider whether, in the knowledge of charges 3 and 4, the second panel could safely disregard this information and afford Mr Ayettey a fair hearing. The panel considered the matter and determined that it could fairly proceed with its consideration of the case.

The second panel heard evidence and submissions on charges 1 and 2 on the first two days of the second hearing and on the third day made a determination that those charges were not proved.

After the panel made its determination on charges 1 and 2, at the request of the NMC’s case presenter there was a short adjournment. When the hearing resumed he explained that charges 3 and 4 had been found proved by the first panel and that it:

… falls for this panel to determine whether [Mr Ayettey’s] fitness to practise is currently impaired by reason of his conduct as a result of [the first panel’s] findings on charges 3 and 4.

In submissions the following day the case presenter clarified that there was a prior question to be dealt with by the second panel. This concerned whether there had been misconduct on Mr Ayettey’s part.

By agreement, the second panel was provided on the third day of the second hearing with the findings of the first panel on charges 3 and 4, the evidence underlying those findings, and a transcript of Mr Ayettey’s evidence to the first panel on charges 3 and 4 only. In that evidence Mr Ayettey had maintained that at no stage had he been dishonest. He gave an explanation for his failure to disclose the Trust’s investigation and dismissal, and for the answers he gave to Pulse when he filled in the application form and when he was interviewed. This explanation, as summarised by the first panel when giving its reasons, was that the appeal process as regards his dismissal by the Trust had not yet been exhausted, and that as no final conclusion had been reached there was no necessity to disclose.

The second hearing resumed on its fourth day with oral evidence from Mr Ayettey. He started his evidence in chief by saying, in relation to his application to Pulse:

The only thing I can say is to apologise for not being honest on that application. …

This was an acceptance by Mr Ayettey that he had not been honest “on” the application form. That acceptance was a dramatic about turn from his denial of dishonesty in evidence to the first panel. However this first sentence did not say when Mr Ayettey realised that he had not been honest on the application form. Mr Ayettey went on to deal with this, and to say other things which he had not told the first panel. In the extract below I set out what I shall call “the initial panel interchange”. It comprises Mr Ayettey’s second sentence, an intervention by the chairman and Mr Ayettey’s response, along with an intervention by a panel member and Mr Ayettey’s response:

[Mr Ayettey:] … I – it was called to my knowledge soon as I started working with Pulse and then --

THE CHAIRMAN: … I am struggling to understand what you are saying, so can you start the last sentence again? I think you said something about it was brought to your notice.

A. Yes, to my notice by a friend. … I think just after third shift [with Pulse] I stopped working with them and I also informed the NMC about that mistake that I did …

…

[PANEL MEMBER:] Sorry, could you say the bit about your friend? I could not hear the -

A. During discussion one of my friend alerted me that what I did was wrong …, so I informed the NMC afterwards and I stopped working with Pulse. I only did a day shift … stopped working, informed the NMC. I’m very sorry.

…

Responding to questions from Mr Betts, Mr Ayettey explained that currently he had part-time delivery work, and that he had also been looking after his children. His examination in chief then ended with what I shall call “the examination in chief concluding answers”:

Q. When talking to the Panel what lessons have you learnt?

A. I learnt a lot of lessons and the main one is not to take anything for granted and also to be upright, to be honest in everything I do.

Q. Is there any risk of repeating the dishonesty of which you have been --

A. Absolutely not.

Q. What else can you say to the Panel today?

A. Just apologise to the Panel for that infraction and then I hope I get a chance to bring the family back from where we are now.

...

Under cross-examination Mr Ayettey said it was when he spoke to his friend that he realised that what he was doing was wrong and dishonest. He then added an assertion which I shall call “the cross-examination non-dishonesty assertion”. This was that at the time of making the application to Pulse:

I wasn’t in the best frame of mind at the time, so I wasn’t acting dishonestly at that time, no.

Cross-examination continued on the position at the time when Mr Ayettey filled in the form and was interviewed by Pulse. This led to what I shall call “the cross-examination not lying exchange”:

Q. … the disciplinary hearing with the Trust where you were dismissed was just a week before you filled in this form.

A. Yes, but by then I’ve appealed the dismissal.

…

A. … I wasn’t lying at the time. I mean, at the time that I was filling [in] the form

Questions were then asked by the panel and the legal assessor. Among other things, the legal assessor asked about the question in the application form as to the reason for leaving the Trust and Mr Ayettey’s answer, “Need more flexibility”. I set out below what I shall call “the legal assessor more flexibility exchange”:

LEGAL ASSESSOR: In your application form to Pulse, and when you put in the application the reason for leaving: “Need more flexibility,” do you remember putting that down?

A. Yes, Sir.

LEGAL ASSESSOR: What should have been in that gap?

A. I shouldn’t have put that, I should have put that I’ve been dismissed from previous employment.

LEGAL ASSESSOR: Why should you have put that?

A. Because … that’s what has happened at the time.

LEGAL ASSESSOR: Right.

A. I should have put that down then … but I didn’t do that, Sir.

…

Further cross-examination then took place. The NMC’s case presenter took Mr Ayettey to a passage in his evidence to the first panel concerning the question on the application form “Have you ever been under investigation, disciplinary or suspension?” In that passage Mr Ayettey had claimed that if he had been cleared at the internal appeal and asked that question afterwards then the answer would be, “No”. Mr Ayettey, in his evidence to the first panel, continued by giving what I shall call “the first hearing rhetorical explanation”:

If I had been cleared then that means there is nothing against me so why would I say yes?

In the course of the further cross-examination before the second panel there occurred what I shall call “the rhetorical explanation interchange”:

Q. Do you agree with [the first hearing rhetorical explanation]?

A. Yes.

Q. What you were saying there?

A. Yes.

Q. So if you were asked: “Have you ever been under investigation, disciplinary or suspension,” tomorrow, would you have to tell the employer about the allegations made by Student Nurse A?

…

A … my understanding is that if I’m cleared then I don’t have to, is my understanding, yes, but if you asked if I have been investigated before like, yes, then I have been investigated before.

Mr Ayettey was re-examined by Mr Betts. The evidence in re-examination included the following:

Q. … Have you ever been under disciplinary proceedings?

A. Yes.

Q. Have you ever been subject to a suspension?

A. Yes.

Q. If you applied for a job in the future and the question is: “Have you ever been under investigation, disciplinary or suspension,” how should you answer that question?

A. Yes.

…

Q. … When you made the Pulse application did you think at the time that you were acting dishonestly?

A. No.

Q. When you discussed matters with your friend did you then realise that you were acting dishonestly?

A. Yes.

Q. Do you recognise now that you were acting dishonestly at the time that you made the Pulse application?

A. Yes.

Q. Would you ever make an application like that again?

A. No.

…

After Mr Ayettey’s evidence was concluded the second panel heard submissions from each side on misconduct and impairment. The panel then adjourned to consider both those matters. Its decision on misconduct and impairment was handed down late that afternoon. In the present section I deal with what was said on misconduct. Section B3.4 below deals with what was said on impairment.

The second panel concluded that the facts found by the first panel on charges 3 and 4 amounted to misconduct. In this regard the second panel, as an exercise of its own professional judgment:

As noted in section B3.3 above, on the fourth day of the hearing the second panel heard submissions on misconduct and impairment together, and its determination handed down on the afternoon of that day dealt with both misconduct and impairment. In its determination (see section B3.3 above) the second panel found Mr Ayettey’s fitness to practise to be impaired.

The second panel’s determination, among other things:

The hearing was adjourned after the second panel handed down its decision on misconduct and impairment. On the following day, the fifth day of the hearing, the chairman noted that the panel now entered stage 3 of the hearing:

… in which the panel must reach a decision as to what, if any, is the appropriate and proportionate sanction in the circumstances of the case.

The chairman asked whether Mr Betts wished to introduce any new evidence on behalf of Mr Ayettey, and was told that he did not. Each side then made submissions on sanction. After hearing advice from the legal assessor the panel retired. The hearing resumed in the afternoon when the panel handed down its determination on sanction. In that determination the second panel:

The determination on sanction identified aggravating features in the passage below, to which I have added introductory words and numbers in square brackets:

[Aggravating feature 1] Your continued lack of insight, failure to comprehend the seriousness of your behaviour and your attempts to mitigate your dishonesty. These issues were further aggravated, as during the mitigation on your behalf, you sought to go behind the findings made by the panel at the impairment stage, for example by stating that you did not understand the gravity of your actions and that you did not present a future risk, as determined by the panel, to the public, breaching a fundamental tenet of the profession, bringing the reputation of the profession into disrepute or being dishonest in the future. There did not appear to be any level of acceptance on your part in relation to these and other matters which may have provided the panel with some evidence of insight on your part.

[Aggravating feature 2] The motivation for your dishonesty was for personal gain to obtain employment and was undoubtedly self-serving. Your concern was for yourself, and perhaps the financial benefit of your family. In doing so you placed your needs before those whom you may work with in the future and above the reputation of the profession;

[Aggravating feature 3] Your dishonesty was committed over a protracted period of time;

[Aggravating feature 4] Your extensive breaches of the Code and your continuing risk of repetition of your misconduct.

The determination on sanction identified mitigating features in the passage below, to which I have added introductory words and numbers in square brackets:

[Mitigating feature 1] The degree of stress you were under when you acted dishonestly;

[Mitigating feature 2] Your engagement with the NMC and attendance at this hearing;

[Mitigating feature 3] The positive references submitted attesting to your competence as a registered nurse;

[Mitigating feature 4] Your previously unblemished career and the fact that this was the first time you found yourself before your professional regulator; and

[Mitigating feature 5] Your personal circumstances and duty to your family.

Legal Framework

Article 38 of the Order allows for an appeal against a decision of the Conduct and Competence Committee. The court’s powers on such an appeal are set out at Article 38(3) which states:

The court…may-

dismiss the appeal;

allow the appeal and quash the decision appealed against;

substitute for the decision appealed against any other decision the Practice Committee concerned…could have made; or

remit the case to the Practice Committee…to be disposed of in accordance with the directions of the court…, and may make such order as to costs…as it, … thinks fit.

Under CPR 52.21(1) and Practice Direction 52D at paragraph 19.1 this appeal is by way of rehearing. Under CPR 52.21(3) the court will allow the appeal if it considers either (a) that the sanction decision was wrong, or (b) that the sanction decision was unjust because of a serious procedural or other irregularity.

The approach to be taken in appeals against sanctions imposed by bodies such as the panel was set out by Jackson LJ (with whom Arden LJ and Sir Mark Potter P agreed) in Salsbury v Law Society [2008] EWCA Civ 1285, [2009] 1 WLR 1286, at [30]:

The correct analysis is that the Solicitors Disciplinary Tribunal comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal. Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere.

Suggested grounds of appeal

Mr Ayettey’s appellant’s notice asserted that grounds of appeal, and a skeleton argument, were attached. A skeleton argument was indeed attached. It had been prepared by Mr Betts on 25 October 2016. I shall refer to it as “the original skeleton”.

However no separate document entitled “grounds of appeal” was attached. There should have been, and not merely because CPR 52 requires it. The failure to specify the grounds of appeal was unsatisfactory because there is an important distinction between a ground of complaint and the arguments in support of that ground. I canvassed with Mr Betts whether it might be possible to identify grounds of appeal from the original skeleton and a supplementary skeleton dated 14 February 2017.

In the original skeleton an allegation of bias had been made. Mr Betts stated that this was not pursued. The original skeleton included an assertion that the finding on sanction was “inconsistent with those approved by this court”. I commented that this was too vague. Mr Betts replied that it was not a ground of appeal.

The result was that 3 suggested grounds of appeal could be identified in the original skeleton:

Turning to the supplementary skeleton, there are 2 preliminary matters which I can rule out. The first preliminary matter is that paragraph 12 of that document said that because Mr Ayettey has extensive family responsibilities, “it might be that article 8 of the European Convention on Human Rights could have been argued more fully in this case.” I refused to allow this to be put forward as a suggested ground of appeal. No details were given of any basis upon which the sanction decision could have infringed article 8. Nor could such details have been given: the notion that there might been any such infringement is far-fetched.

The second preliminary matter concerns a suggestion in the supplementary skeleton that bias, although now said to be “not a distinct ground of appeal to be independently pursued”, nevertheless “remains in the background of this case”. I consider this to be unacceptable. Where, as here, an allegation of bias has been withdrawn, then there is unlikely to be any room for a residual suggestion that bias, or a concern about bias, remains in the background. In the present case what remains in the background is that there was an allegation of bias in the original skeleton, but it has been withdrawn.

I add in relation to this residual suggestion that Mr Betts in his submissions to the second panel had warned of the danger of “cognitive bias”, and in the original and supplementary skeletons contemplated that prejudicial material from the re-hearing of charges 1 and 2 may have had an effect on the decision on sanction. Neither skeleton, however, identified any specific aspect of cognitive bias as a reason for complaint about the second panel, rather than as a reason for complaint about the conduct of the NMC. Nor did either skeleton indicate any specific feature of the hearing of charges 1 and 2, or anything about the hearing of charges 3 and 4, which could justify a complaint that the panel was improperly influenced. The allegation of bias was never more than speculative. I have no hesitation in dismissing both the allegation of bias and the residual suggestion that it remained in the background.

As I stated at the hearing, I am entirely satisfied that in his other arguments Mr Betts has canvassed every possible point that could be argued on behalf of Mr Ayettey. Suggested grounds of appeal that could be identified in the supplementary skeleton were:

Analysis

Grounds of appeal (1) to (9) above do not complain of anything which is expressly said to involve an error of law. Accordingly the court can only allow Mr Ayettey’s appeal if satisfied that the sentencing decision was clearly inappropriate: see section C above. Mr Ayettey claims that this test is met. It is convenient to analyse Mr Ayettey’s claim by discussing what he says on particular topics before turning to examine his claim overall.

In section E2 below I discuss grounds of appeal which make reference to dishonesty. Sections E3 and E4 discuss the stance taken by Mr Ayettey in relation to misconduct and impairment respectively. In section E5 I deal with matters identified by the second panel as calling for the sanction of striking off. Section E6 examines matters relied on by Mr Ayettey as warranting a less severe sanction. In section E7 I review Mr Ayettey’s overall complaints.

The first panel, when considering charges 3 and 4, made specific findings that Mr Ayettey, in his dealings with Pulse:

At the hearing of the first appeal Mr Ayettey made an attempt to undermine these findings. That attempt failed: see section B2 above. The result is that these specific findings cannot now be attacked. It was of course open to Mr Ayettey at the second hearing to concede that the findings were correct. As a matter of principle, however, it was too late for Mr Ayettey to give evidence at the second hearing that, while he conceded that his application form had been dishonest, he only realised this later. Be that as it may, Mr Ayettey was not stopped from giving evidence to that effect to the second panel. In that regard he was disbelieved by the second panel.

In these circumstances it is hardly surprising that the original skeleton acknowledged “the serious nature of the dishonesty on charges 3 and 4”. There was no hint in the original skeleton of any intent to downplay the serious nature of what Mr Ayettey had done.

There is a stark contrast between the original skeleton and the supplementary skeleton. The supplementary skeleton, in suggested ground of appeal (4), put at the forefront a contention that the misconduct could be seen as a “white lie” of limited pecuniary benefit. It appears to be contended that on this basis Mr Ayettey’s lies “could, in hindsight, be treated at the lower end of the scale of seriousness”.

I reject the submission that Mr Ayettey’s misconduct could be seen as a “white lie” of limited pecuniary benefit. Suggested ground of appeal (4) accepts that Mr Ayettey’s misconduct involved lying. The first panel concluded that Mr Ayettey was aware that he was under a duty to disclose to Pulse that he had been subject to disciplinary proceedings and had been dismissed: see paragraph [1] in the passage cited in section B1 above. In reaching this conclusion the first panel necessarily rejected Mr Ayettey’s evidence that he thought that because his dismissal was under appeal he did not need to disclose either the dismissal itself or the investigation which led to it.

The second panel noted that the sexual misconduct allegations against Mr Ayettey were of the utmost seriousness. It concluded that Mr Ayettey’s behaviour by dishonestly completing the application form to Pulse posed a risk to the public. It also concluded that Mr Ayettey had not understood the seriousness of his dishonesty and the reasons why it was important for a registered nurse to be open and honest in matters concerning employment history. I do not consider that dishonesty involving such a massive misjudgement, throughout an extended period in which Mr Ayettey knew that he was dishonestly concealing relevant information, would ordinarily be considered as a “white lie”. Even if it were given that description, however, it is manifestly impossible to categorise Mr Ayettey’s misconduct as at the lower end of the range of seriousness. In these circumstances suggested ground of appeal (4) does not assist Mr Ayettey.

I turn to suggested ground of appeal (5), which is set out in paragraph 7 of the supplementary skeleton:

7.

The factors, which all the submissions for [Mr Ayettey] addressed, and to which I refer, were also very relevant to sanction and to how far up the scale he should now be seen. The sanctions cannot be properly addressed without consideration of the factors to which [Mr Ayettey’s] evidence was addressed; and this has to be applied consistently.

The category of factors described in paragraph 7 appears to be those referred to in the supplementary skeleton, including in particular those addressed in Mr Ayettey’s evidence. Although there is no express statement to this effect in paragraph 7, the broad complaint is presumably that factors in this category either were disregarded, or were inconsistently treated, by the panel when considering sanction and how far up the scale Mr Ayettey should be seen.

The category described in paragraph 7 is wide enough to include dishonesty. As to dishonesty, however, the complaint in paragraph 7 is misconceived. The potential risk to the public from Mr Ayettey’s lies was more than enough to justify a finding that Mr Ayettey’s misconduct was serious. Moreover, Mr Ayettey’s dishonesty was not limited to the lies that he told. The first panel found generally that Mr Ayettey acted dishonestly by concealing relevant information “both at the time of the application and subsequently, in particular after 6 June 2013 when his disciplinary appeal had been dismissed”. In these circumstances the second panel was fully entitled to conclude that Mr Ayettey’s dishonesty constituted serious misconduct. That conclusion was consistent with the second panel’s other findings.

Suggested ground of appeal (9) is found in paragraph 11 of the supplementary skeleton. It is principally concerned with stress as a mitigating factor. I mention it here because it refers to the “assessment of dishonesty” after making an assertion that Mr Ayettey’s “ability to make decisions and reason properly were compromised and his judgment had been impaired.” No details are given, however, of the respects in which, as to honesty or otherwise, Mr Ayettey’s abilities were “compromised” and his judgment “impaired”. What is said in paragraph 11 is this:

11.

The stress under which [Mr Ayettey] had been living for several months as the employment tribunal litigation unfolded provides some explanation for his behaviour but not an excuse. His ability to make decisions and reason properly were compromised and his judgment had been impaired. The assessment of dishonesty must be made in context and from an informed perspective. This allows for any specific knowledge and understanding of the professional context, without the need to imply a differing level of honesty. (emphasis added)

I have a concern that the sentences I have italicised may be intended to suggest that the “white lie” contention in suggested ground of appeal (4) can still be advanced, side-stepping both panels’ specific findings. If that is indeed the intended suggestion, then it is untenable: see section E2.2 above.

It may be, however, that the sentences I have italicised are simply intended to say that the second panel’s assessment of Mr Ayettey’s dishonesty, and its assessment of the appropriate sanction for his misconduct, must take account of any conclusion it may reach as to its knowledge and understanding of the professional context. If so, then the italicised sentences add nothing to points made earlier in paragraph 11 and elsewhere in the original skeleton and supplementary skeleton.

There is further point to be mentioned in relation to the “white lie” contention. That contention was advanced in the supplementary skeleton as identifying a factor relevant to assessing the seriousness of Mr Ayettey’s misconduct. The complaint in suggested ground of appeal (4) does not challenge the second panel’s conclusion that there was misconduct.

As the second panel noted (see item (2) in section B3.3 above), breaches of the Code do not automatically result in findings of misconduct. It is thus open to a registrant to advance a contention that a breach of the Code should not be regarded as reprehensible and therefore should not be treated as misconduct. If in truth there had been no more than a “white lie”, one might have expected Mr Ayettey to have advanced a contention of this kind.

The original skeleton stated expressly that there was no appeal against the second panel’s finding of impairment. As noted by the NMC, however, the supplementary skeleton nevertheless contests the second panel’s findings on insight, remediation and the risk of repetition, upon which the second panel’s finding of current impairment was based.

Insight falls within the category of complaints described in paragraph 7 of the supplementary skeleton and falling within ground (5): see section E2.3 above. Paragraph 17 of the supplementary skeleton made a general assertion that Mr Ayettey “has insight into his behaviour”. What the second panel actually found, however, was that Mr Ayettey had “limited insight” (my emphasis) into his misconduct: see item (7) in section B3.4 above.

This was acknowledged in the oral submissions for Mr Ayettey at the hearing before me. Those submissions included a claim that Mr Ayettey had more than limited insight. This claim relied on oral evidence by Mr Ayettey to the second panel:

In my view Mr Ayettey’s answers in these passages give no solid basis for challenging the second panel’s finding. The answers to the legal assessor may indicate that Mr Ayettey knew that he needed to tell the truth to a prospective employer. As to what the truth was, however, the answers given during the course of his oral evidence to the second panel showed Mr Ayettey still to be confused. As noted in section B3.2 above, Mr Ayettey’s initial acceptance that he had not been honest “on” the application form did not say when Mr Ayettey realised that he had not been honest on the application form. In the initial panel interchange he said his “not being honest on that application” was “called to my knowledge” when he started working with Pulse – which was some months later, as he was not cleared for work with Pulse until 23 August 2013. He added that it was a friend who “alerted me that what I did was wrong”. In the cross-examination non-dishonesty assertion he made an unambiguous claim that at the time he made his application to Pulse “I wasn’t acting dishonestly” and gave an explanation that “I wasn’t in the best frame of mind at the time”. In the cross-examination not lying exchange he said that at the time he made his application to Pulse “I wasn’t lying” and gave an explanation that by that time “I’ve appealed the dismissal”. There appeared to be a recognition by Mr Ayettey, in the legal assessor more flexibility exchange, of one aspect of what he should have done. However under further cross-examination Mr Ayettey reverted, in the rhetorical explanation interchange, to his stance before the first panel, adding an explanation of his understanding which was hopelessly confused. Re-examination eventually coaxed the correct answers from Mr Ayettey, but this hardly gave confidence that he would identify the correct answers without assistance. In these circumstances it is hardly surprising that the second panel concluded that Mr Ayettey had invented his story about a friend, and had in fact known all along that what he was doing was dishonest. Mr Ayettey’s evidence thus simply failed to grapple with what really occurred. I cannot accept the claim that Mr Ayettey had more than limited insight.

Earlier submissions on behalf of Mr Ayettey asserted that the second panel, by describing Mr Ayettey’s insight as limited, had accepted that there was not a complete lack of insight, not a fundamental lack of insight, not a dangerous or persistent lack of insight, not an absence or lack of insight or even very limited insight. These submissions went too far. The second panel used its own language to explain what it meant by limited insight. In that regard I repeat part of the quotation at item (7) in section B3.4 above:

You were unable to assure the panel that you fully understood the seriousness of your dishonesty or the reasons why it was important for a registered nurse to be open and honest in matters concerning their employment history. The panel considered that your lack of insight was likely to impact, in the future, when making decisions with integrity in respect of any future employment as a registered nurse.

This explanation by the second panel was amply justified by Mr Ayettey’s inconsistent and confused evidence. It was stressed on his behalf that he had “already been questioned by 10 people at the first and second hearings”, and that the questions by the legal assessor were not easy. However the extent of previous questioning cannot justify Mr Ayettey’s invention of a conversation with his friend. Nor can it justify the other ways in which Mr Ayettey sought to minimise his misconduct. I add that it may well be that certain of the questions from the legal assessor were not easy for Mr Ayettey. To the extent that that may be so, it seems to me that the reason why those questions were not easy for Mr Ayettey is that he had no satisfactory answer to them.

The second panel when considering sanction noted that a considerable period of time had passed since the first panel’s findings, and commented that the passage of time had not assisted Mr Ayettey in developing insight into the seriousness of his dishonesty (my emphasis). I add that there is no basis for thinking that the second panel ignored the passages in Mr Ayettey’s evidence which are now relied on. Nor is there any basis for suggesting that there was some unspecified inconsistency in the way that the panel dealt with the question of insight.

For all these reasons I reject Mr Ayettey’s assertions about the second panel’s finding of limited insight.

Remediation, like insight, falls within the category identified in paragraph 7 of the supplementary skeleton. Paragraph 17 of the supplementary skeleton included an assertion that there was evidence of honesty and remediation in Mr Ayettey’s work for the Post Office. As the second panel noted, however, acts of dishonesty are not easily remediable. It is difficult to see how Mr Ayettey’s work for the Post Office could come close to remediation of what Mr Ayettey had done.

As to suggested ground of appeal (5), risk of repetition similarly falls within the category described in paragraph 7 of the supplementary skeleton. Paragraph 17 of the supplementary skeleton asserts generally that “there is no risk of repetition”.

I also mention here suggested grounds of appeal (8) and (9). They identify particular factors which concern Mr Ayettey’s personal circumstances and which provide a context in which the misconduct occurred. These factors were identified in passages which included:

The primary concern of the second panel, however, was to look to the future. As to there having been particularly stressful circumstances in the past, the second panel in its ruling on sanction noted that poor conduct in relation to stress could arise in the future.

Oral submissions for Mr Ayettey at the hearing before me relied on three passages in Mr Ayettey’s evidence to the second panel:

In none of these passages, however, does Mr Ayettey explain how he would cope if the previous stresses were to resurface. That being so, I consider there is no sound basis for complaining of the second panel’s finding as to risk of repetition.

The heading above summarises aggravating feature 1 as being concerned with continuing lack of insight. As can be seen in section B3.6, the panel included in this feature three matters of particular concern. The first was Mr Ayettey’s failure to comprehend the seriousness of his behaviour. The second comprised his attempts to mitigate his dishonesty. The third was the absence of any recognition, when submissions on sanction were advanced, of the important findings made by the second panel at the impairment stage.

There is no express challenge to what was said by the second panel when describing aggravating feature 1. In so far as suggested grounds of appeal (4), (5), (8) or (9) might be thought to make an inferential challenge, any such challenge fails for the reasons given in sections E1 to E4 above.

The panel’s full description of this aggravating feature is set out in section B3.6 above. In summary, Mr Ayettey’s dishonesty was self-serving, placing his needs ahead of potential risk to those with whom he might work, and above the reputation of the profession. As to this being an aggravating factor, I can detect no express or implicit challenge to what is said by the panel when describing aggravating feature 2. The force of this aggravating feature is, however, to some extent counterbalanced by mitigating feature 5: see section E6.5 below.

There is no express challenge to aggravating feature 3. In so far as suggested grounds of appeal (4), (5), (8) or (9) might be thought to make an inferential challenge, any such challenge fails for the reasons given in sections E1 to E4 above.

There is no express challenge to aggravating feature 4. Three of the requirements of the code were the subject of breaches by Mr Ayettey. The breaches in the completed application form were extensive. Matters were made worse by what Mr Ayettey said in the interview, and by his continuing failure to tell Pulse what had happened, especially after his disciplinary appeal failed. The supplementary skeleton seeks to challenge the second panel’s finding of risk of repetition, but I have explained in section E4.4 above why that proposed challenge lacks merit. In so far as suggested grounds of appeal (4), (5), (8) or (9) might be thought to make other inferential challenges, any such challenge fails for the reasons given in sections E1 to E4 above.

When listing mitigating features the second panel put at the forefront:

As to that, suggested ground of appeal (6) complained of omissions by the second panel. In particular, it made no mention of an Oxford University report summary, The impact of being wrongly accused of abuse in occupations of trust. That report included a passage noting that some of those wrongly accused:

… struggled to reconcile the need to ‘fight the allegations’ with the desire to shut down and hide from the shame of an unwanted label.

In this regard Mr Betts, when addressing the second panel on sanction, made two references to the report summary. First, he noted that Mr Ayettey had, at a time before the report was published, used the expression “shut down” when asked about what was going on in his mind. Mr Betts then invited the second panel to pause and reflect on the research that had now been done. Second, at a later stage Mr Betts reminded the second panel of what he had said earlier and added that there was a suggestion that Mr Ayettey was still shut down even now. Mr Betts then referred the second panel to what had been “made clear in the report in terms of impact”. I add that the report made clear, among other things, that those wrongly accused suffered a very high degree of stress.

It is true that the second panel did not specifically cite the report summary or Mr Betts’s references to it. But that does not mean that they failed to have regard to these matters. There is no reason to doubt that when the second panel referred to “the degree of stress” they had in mind not only Mr Ayettey’s evidence about that stress but also the support given to that evidence by the report summary. At no stage did the second panel say that it did not accept Mr Ayettey’s evidence about the stress that he experienced.

At the hearing before me Mr Betts submitted that the second panel had perversely used the stress Mr Ayettey had been under to support its finding of a risk of repetition. The second panel was indeed concerned as to what would happen in the future if Mr Ayettey were placed under similar stress: see section E4.4 above. There is nothing perverse about this. The second panel’s primary concern was about the position for the future. If there were to be new allegations of sexual misconduct, it would be unrealistic to assume that Mr Ayettey would not be exposed to similar stresses.

Mr Ayettey makes no complaint about what the second panel said in relation to mitigating feature 2.

Mitigating feature 3 was expressed in this way:



The positive references submitted attesting to your competence as a registered nurse;

There can be no doubt that the second panel had these references firmly in mind. The sanction decision repeatedly noted that no question arose as to Mr Ayettey’s competence as a nurse.

Suggested ground of appeal (2) asserts that the second panel gave inadequate weight to Mr Ayettey’s testimonials. Suggested ground of appeal (7) makes a similar assertion. So far as competence is concerned, no explanation is given for these assertions. I can detect no basis for complaint in this regard. I deal in section E6.4 below with a separate assertion that there may have been inadequate treatment of Mr Ayettey’s good character.

Mitigating feature 4 was expressed in this way:



Your previously unblemished career and the fact that this was the first time you found yourself before your professional regulator;

There is no suggestion that the second panel failed to give full credit for matters that were mentioned in mitigating feature 4. However in suggested ground (7) it is said that there may have been inadequate treatment of Mr Ayettey’s good character. The supplementary skeleton in that regard noted that there was no history of dishonesty or concealment.

At the hearing before me Mr Betts drew attention to a passage in the sanction decision where the second panel said, in relation to the testimonials referred to in section E6.3 above:

The Panel noted that those references were relevant to confirm that you were a competent registered nurse, rather than direct evidence of your character.

Mr Betts explained that in his submissions on charges 1 and 2 he told the second panel that he had been asked to make clear that the testimonials related “to Mr Ayettey’s professional conduct as a nurse, and that is the extent of them”. In that regard I note that if Mr Ayettey had made positive assertions of good character in the context of charges of sexual misconduct questions might have arisen at the second hearing as to whether it would be open to the NMC to seek to adduce rebuttal evidence.

In relation to consideration of sanction, I understood Mr Betts to submit that what ought to have happened on charges 3 and 4 at the second hearing was what happened at the first hearing: namely, that in the context of charges of dishonesty Mr Ayettey had the benefit of a full good character direction. No such submission had been made in either the original skeleton or the supplementary skeleton.

There is a short answer to this submission. The first panel, with the benefit of a full good character direction, found Mr Ayettey to have acted dishonestly from the time that he completed the application form. As noted above, that finding cannot now be challenged. Whether there should or should not have been a similar direction to the second panel at the fact finding stage is nothing to the point. Indeed the point is only taken in relation to consideration of sanction. A crucial feature in that regard must be the second panel’s own assessment of Mr Ayettey’s actual dishonesty, while a further crucial feature will be the second panel’s assessment of impairment. It is quite impossible to think that a direction as to Mr Ayettey’s prior good character would have made any difference as regards sanction. I add that the testimonials do not speak positively of Mr Ayettey’s honesty. There was no failure by the second panel to consider relevant evidence.

Mitigating feature 5 was described by the second panel in this way:



Your personal circumstances and duty to your family.

As noted in section E5.2 above, the need for Mr Ayettey to provide for his family to some extent counterbalances the aggravating feature of dishonesty for personal gain. There is no suggestion that the second panel failed to have regard to this.

I take in turn contentions made on behalf of Mr Ayettey as to the overall outcome. In support of suggested grounds (1) to (3) of appeal the original skeleton asserted that:

… following the finding on charges 1 and 2, this is one of those rare cases in which, despite the serious nature of the dishonesty in charges 3 and 4, there is not a real likelihood of serious damage to public confidence in the profession if [Mr Ayettey] is allowed to continue to practise.

There are two answers to this assertion. The first is that, quite apart from consideration of public confidence, the second panel found impairment in the form of a lack of insight which was likely to impact when Mr Ayettey was making decisions with integrity in respect of any future employment as a registered nurse. The panel considered lesser sanctions and found that none would adequately guard against this impact. The inevitable consequence was that Mr Ayettey’s case called for the sanction of striking-off.

The second answer lies in the cogency of the second panel’s finding in relation to public confidence in the profession. In the light of my examination above of the serious nature of Mr Ayettey’s dishonesty, and the panel’s reasons for concluding that Mr Ayettey has only limited insight, along with the lack of merit in Mr Ayettey’s specific complaints, I cannot say that the second panel’s finding in this regard is inappropriate.

Also in support of ground (1) the original skeleton said that the sanction decision was not proportionate, adding that the public interest consisted not only in having a safe profession in which the public can have confidence but also in allowing a nurse of good standing to continue valuable work. However in my view there is no lack of proportionality: for the reasons given by the second panel, it was clear from the evidence at the second hearing that it was not possible to be confident that Mr Ayettey would act with integrity.

The original skeleton, as regards suggested grounds of appeal (1) to (3), repeated a submission made to the second panel that Mr Ayettey’s conduct fell into “the small residual category of cases where a striking-off order is not a reasonable and proportionate sanction for such dishonesty”. The supplementary skeleton, as regards suggested ground of appeal (8), in this regard stressed lack of injury to others, absence of deep-seated attitudinal problems, and a difficult and at times harrowing personal situation. For the reasons given above, however, neither the submission referred to in the original skeleton, nor the submissions in the supplementary skeleton, can survive the findings of the second panel on misconduct and impairment.

The supplementary skeleton, as regards suggested ground of appeal (6), asserted that the sanction decision failed to refer to the submission described above. However the structure of the sanction decision had the consequence that it was not necessary for the second panel to make express reference to that submission. As noted earlier, the sanction decision examined possible outcomes in order of severity. Its conclusion that outcomes short of striking-off would not be appropriate necessarily entailed a conclusion that the present case did not fall into the “small residual category”. That being the case, the inevitable corollary was that Mr Ayettey’s plea for leniency could not conceivably be regarded as meritorious.

Conclusion

For the reasons given above this appeal is dismissed.