000 days

since the NMC committed to investigate its ‘established procedures’. We’re still watching!

Navigating FtP process: the accusation of dishonesty

One of the hardest allegations to deny and prove is around dishonesty.
NMC charges can be worded often to include a statement that by doing XYZ you were dishonest.
Honesty is a core value of anyone going into the profession and we all define honesty as being trustworthy and doing the best we can with the best intensions.
The NMC understandably feel that if a nurse or midwife has been dishonest they can not remain on the register because this goes against the fundamentals of being a professional and patients need to be able to trust us.
But how do you prove you are honest? How do you prove that the action itself was not done to deliberately deceive or be dishonest?
The NMC guidance on dishonesty was revised after a couple of High Court Appeals were brought about challenging the NMC decision making.
Lusinga V NMC ( 2017 ) This nurse challenged the decision by the NMC panel and that to strike him off was disporportionate. Justice Kerr replaced the order with a suspension and enable them to return to practice. Justice Kerr also made some interesting observations:
“I hope the Indicative Sanctions Guidance will be looked at again in the light of this judgment. The guidance does not differentiate between different forms of dishonesty, and takes one of the most serious forms of dishonesty (fraudulent financial gain) as the paradigm, without alluding to the possibility that dishonest conduct can take various forms; some criminal, some not; some destroying trust instantly, others merely undermining it to a greater or lesser extent.”
and “guidance, in my respectful opinion, needs to be more nuanced in that respect. It should not lump the thief and the fraudster together with the mere contract-breaker. I also hope the NMC will look again at the question of excessive hours. If there is a widely held view among the experts that it is normally unsafe to work more than a specified number of hours in a particular week, or day, or month, it could be made the subject of a direct obligation not to exceed a permitted maximum.”
The founder of NMCWatch’s case ( Watters V NMC, 2017 ) a few months later also mirrored Justice Kerr’s comments. Justice Cheema Grubb made extremely bold statements against the process that was followed, namely the weight that the panel put on the fact that I denied the charges of dishonesty:
If the ISG had been a little more detailed, a little more nuanced and considered the broad spectrum of dishonesty misconduct in a little more detail, in my judgment it is highly unlikely that this appellant would have had to suffer the months that she has since the Panel’s determination until today”.
The guidance by the NMC was reviewed but is still a little vague. We have put some points to consider that may help you in providing an appropriate reflection to prove to the panel you have insight in these areas. Remember the panel are not saying YOU are dishonest, they are saying that YOUR ACTIONS at the time of the event may have been. If you can detach yourself from it being about your personal character and more about how others may see your actions you will be in a better place to see how the panel will be determining this difficult area:
  1. What the nurse, midwife or nursing associate knew or believed about what they were doing, the background circumstances, and any expectations of them at the time
  • Did you intensionally do the action?
  • Was it as a result of a lapse of judgement or something else?
  • Do you now realise by stepping back how it could be perceived as being dishonest?
2. Whether the panel considers that the nurse, midwife or nursing associate’s actions were dishonest.
  • Was this something that is obviously dishonest?
  • Is there evidence of dishonesty eg witnessing stealing, stating an untrue fact, presenting false documentation?
3. Whether there is evidence of alternative explanations, and which is more likely.
  • Remember the law used is the civil standard – on the balance or probabilities. That means the panel have to prove 51% or more that you did it…
  • Give lots of evidence to show your usual behaviour – testimonials etc
  • BUT be cautious just because you haven’t done it before, haven’t done it since, isn’t enough to prove you didn’t do it then.
So can you deny a dishonesty charge but still show insight?
YES absolutely and since Lusinga and Watters cases this is the point entirely. The panel want to see that you understand their concerns ie if you had done it what would be the impact and how would someone reading the hearing outcome percieve it. Showing insight is about the actual event but also having insight about the perceived action,
Under the professional duty of candour, nurses and midwives must be open and honest with patients when something that goes wrong with their treatment that could cause harm or distress. This means that nurses and midwives must tell the patient (or, where appropriate, the patient’s advocate, carer or family) when something has gone wrong. Keeping silent when something has gone wrong is a breach of this professional duty.
The cases below all show examples of dishonesty where these two appeal cases have been cited, there are more on the NMC website which you can read to gain more understanding.