Dishonest Nurses and NMC Cases
Each year a number of nurses are referred to the Nursing and Midwifery Council (NMC) for alleged dishonest conduct. Dishonesty can take many guises. Obvious dishonesty could be shoplifting, stealing drugs from a hospital, or intentionally misleading others by falsifying the data entered on official forms. Then there is moonlighting – working for an employer while off sick from a job another employer – which is more common than one might think. In other cases a nurse may have been dishonest in the workplace but felt pressured by others to do so.
A nurse who is referred to the NMC for dishonesty may be wholly innocent. Such nurses will need to defend their good name through the NMC investigations process. On some occasions, witnesses against a nurse will lie and exaggerate because of bad blood between them.
NMC Code of Conduct for Nurses – Dishonesty
The NMC Code of Conduct for Nurses requires nurses to be honest in all of their dealings with others. The NMC Code of Conduct for 2014 demands that nurses: “Be open and honest, act with integrity and uphold the reputation of your profession“. The code is then broken down into the following sections:
Act with integrity
- 48. You must demonstrate a personal and professional commitment to equality and diversity
- 49. You must adhere to the laws of the country in which you are practising
- 50. You must inform the NMC if you have been cautioned, charged or found guilty of a criminal offence
- 51. You must inform any employers you work for if your fitness to practise is called into question
Deal with problems
- 52. You must give a constructive and honest response to anyone who complains about the care they have received
- 53. You must not allow someone’s complaint to prejudice the care you provide for them
- 54. You must act immediately to put matters right if someone in your care has suffered harm for any reason
- 55. You must explain fully and promptly to the person affected what has happened and the likely effects
- 56. You must cooperate with internal and external investigations
- 57. You must not abuse your privileged position for your own ends
- 58. You must ensure that your professional judgment is not influenced by any commercial considerations
Uphold the reputation of your profession
- 59. You must not use your professional status to promote causes that are not related to health
- 60. You must cooperate with the media only when you can confidently protect the confidential information and dignity of those in your care
- 61. You must uphold the reputation of your profession at all times”
Many nurses are of previous good character, when they appear before NMC panels. A nurse’s good character will assist them, to some degree, to show that their dishonest conduct was out of character for them. Alternatively, good character can be used to demonstrate that admitted dishonesty was an isolated event, so permitting the NMC panel to take a more lenient approach, in contrast to a nurse who has been dishonest on several occasions over a long period of time.
Dishonesty – Legal Definitions
Latest Court Judgment on the test for dishonesty: Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent)  UKSC 67.
Lord Hughes confirmed that the test laid down by Lord Hoffman in Barlow Clowse was good law, that [at para 74]:
“…the second leg of the test propounded in Ghosh does not correctly represent the law and…directions based upon it ought no longer to be given. The test of dishonesty is as set out by Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan and by Lord Hoffman in Barlow Clowse.
“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”
The following paragraph needs to be read in light of the Ivey judgment.
A nurse who acts or omits to act in a way that he or she knows is dishonest, when measured by ordinary standards of honesty, would have acted dishonestly, and could therefore be liable to a finding of misconduct in NMC proceedings. The law on dishonesty is defined in the cases of Twinsectra Limited v Yardley and Others  UKHL 12, and Ghosh, R. v  EWCA Crim 2. There is an objective test and a subjective test to the offence of dishonesty, to be applied by courts and tribunals when assessing whether an individual has been dishonest. [For addional case law and more detailed commentary on dishonesty in clinical practice or outside of practice, see an article written for doctors facing GMC proceedings: Dishonest Doctors]
NMC Dishonesty Charges
By way of example, a nurse facing a dishonesty allegation at the NMC might face a charge framed as follows:
That being a registered nurse, on 15 June 2012, you:
1) Took drugs from the ward drug trolley for your own use;
2) Your conduct as set out in paragraph 1 was dishonest.
Your fitness to practise is impaired by reason of your misconduct.
In the alleged theft of drugs charge (Charges 1 and 2), the NMC would have to prove a number or elements at a hearing, if the nurse were to deny the allegation. The NMC would need to prove that the nurse acted in the way alleged in charges 1. Then the NMC would need to prove (in charge 2) that by ordinary standards of reasonable and honest people it would be dishonest to obtain the drugs as set out in charge 1. That is the objective test. If that element were satisfied, the NMC would then have to prove that the nurse knew that such conduct was dishonest, when she took the drugs. That is the subjective test. If both the objective element and the subjective element are found proved on the balance of probabilities, then the nurse will be found to have committed the factual allegation. The panel then looks at whether the nurse’s conduct should be classed as misconduct, and whether her fitness to practise is impaired by reason of that misconduct. [Read our NMC Hearings page for more information on the NMC hearings procedure.]
The same approach would be taken in relation to Charges 3 and 4 below.
3) You called in sick to Employer A (your salaried job) while working a shift for Employer B (an agency), over the same time-frame and received pay for both.
4) Your conduct as set out in paragraph 3 was dishonest.
The NMC would have to prove that the nurse had a commitment to cover both shifts and had indeed full knowledge of what she was doing, and that she was dishonest in her actions. So, again, there would be an objective and subjective test to be applied by the NMC when determining whether the nurse has acted dishonestly. Again this would be determined on the balance of probabilities. The booking of the agency shift when the nurse knew she would have to call in sick could be said to be dishonest, as could putting in a time-sheet to claim for the pay for the agency shift, while taking no steps to inform her employer that she had been able to work after all. NMC charges will often have a number of aggravating features to them, like in this charge (charge 3 and 4), which would make the misconduct particularly serious. This in turn could lead to a much more severe sanction being imposed on the dishonest nurse. Nurses should therefore ensure that they avoid moonlighting conflicts.
The Standard of Proof in NMC Proceedings in Dishonesty Cases
Unlike the criminal courts (which assesses evidence to the criminal standard – i.e. be satisfied so that you are sure), the NMC (being a regulatory tribunal that is civil in origin) assesses evidence on the balance of probabilities (i.e. which version of events is more probable, or more probably occurred) – the threshold being 51% or greater probability that the alleged misconduct occurred. The lower threshold to find a case increases the chances that a nurse will be found guilty of dishonesty. Proper preparation is therefore absolutely essential before going to a hearing or submitting documents to the NMC.
Taking the Right Approach to Allegations of Dishonesty
Nurses often make mistakes in handling their case without the assistance of a specialist lawyer, when engaging with the NMC. Nurses can often say too much or too little to the NMC, or say the wrong thing out of panic, which will later detrimentally affect the way that their case is determined by the NMC.
Nurses Defence Service can assist nurses to assess the case being brought against them, give them legal advice and guidance on admissions and denials, and on the evidence the NMC has obtained, and on the evidence the nurse should obtain to defend her- or himself. Nurses Defence Service can assist nurses with writing a reply to the NMC, and provide legal representation at all stages of a NMC investigation into allegations of dishonesty.
Sanctions in Cases of Dishonesty
Nurses who are dishonesty are at grave risk of being struck off. But not all nurses are struck off. Each case will turn on its own facts. In the case of Parkinson v Nursing and Midwifery Council  EWHC 1898 (Admin), an appeal court judge opined:
‘A nurse found to have acted dishonestly is always going to be at severe risk of having his or her name erased from the register. A nurse who has acted dishonestly, who does not appear before the Panel either personally or by solicitors or counsel to demonstrate remorse, a realisation that the conduct criticised was dishonest, and an undertaking that there will be no repetition, effectively forfeits the small chance of persuading the Panel to adopt a lenient or merciful outcome and to suspend for a period rather than direct erasure.’
It is therefore essential to attend and prepare fully for the hearing.
NMC Case Law on Dishonesty
Nurses Defence Service assists nurses in all specialisms who are facing allegations of dishonesty before the NMC. To speak in confidence to one of our lawyers, without obligtion, call us on: 0800 0122 506