The Queen on the application of Kibe v Nursing and Midwifery Council (NMC) [2013] EWHC 1402 (Admin)

K, a nurse, appealed against a decision of a panel of the NMC’s Conduct and Competence Committee which had found her guilty of dishonesty and ordered that she be struck off the register.

 

 K had been dismissed from her employment as a nurse at the Queen Elizabeth Hospital, Woolwich (QEH) due to unacceptable performance, poor standards of care and being unable to carry out duties at the grade at which she was employed. She later applied for a position at a different hospital but failed to disclose on her application form/supporting statement that she had been employed at the QEH. The overall impression from her application was that K had worked on an agency basis for the duration of her nursing career.

K’s application was successful but, after a few months, a number of concerns were raised regarding her experience and competence. K was subsequently interviewed by a senior member of staff, Mr Kumar, where she was asked, inter alia, for her employment history and whether she had undertaken any preceptorship (the transition period from student to qualified practitioner). Notes from this interview did not record that K had held a substantive post at the QEH and further noted that she had answered 'no' to the question of whether she had undertaken any preceptorship. The hospital subsequently discovered K’s dismissal from QEH (where she had also undertaken preceptorship), and she was dismissed. K was later subject to allegations of dishonesty before the Conduct and Competence Committee (the committee) of the NMC.

K argued that she had produced certificates of inoculation from her employment at QEH at her initial interview, such that the hospital would have then been alerted to this employment prior to appointing her. On the basis that she knew she would be required to submit such certificates, K argued that she had not been dishonest - claiming that the omissions from the application itself had merely been an oversight. K further submitted that she had disclosed her employment at QEH - both in her job interview and in her interview with Mr Kumar.

K also argued that she had not been dishonest when answering questions in relation to preceptorship as her understanding was that, on the basis she had not actually completed a period of preceptorship, she had not ‘undertaken’ it.

The committee, however, found K’s evidence on both points to be inconsistent and did not find her to be a credible witness. It found that it was not at all clear that the certificates had been presented at interview. It was not convinced that she had mentioned her employment at QEH - particularly in view of the fact that hospital staff appeared to have been unaware of it for some time. It also found K’s evidence as to preceptorship to be  unreliable and, again, consistent with the view that she had sought to continue concealing her employment at QEH.

The committee found K to have been dishonest in the application process and at interview with Mr Kumar. It held that she had put her own interests above those of her patients and found her fitness to practise to be impaired, ordering that she be struck off the register.

K appealed against all aspects of the decision - arguing that she had not been dishonest, that her fitness to practise was not impaired and that the sanction of strike off was not justified in the circumstances.

The court agreed with the committee’s findings that K had been dishonest - both in her application and in her interview with Mr Kumar. It held that, even if the certificates had been produced, this was some time later in the application process and it was entirely possible that K had deliberately and dishonestly failed to mention her employment at QEH in order to conceal her dismissal. Furthermore, prior to the resumed hearing to determine sanction, it had come to light that K had applied for another job and had failed to disclose that she was subject to an investigation by a professional body.

In relation to the issues of impairment and sanction, K argued that the dishonesty had been confined to the process of applying for a job in interview and could not, therefore, be said to constitute evidence that K was a risk to patients. The court noted that it would take a cautious approach to going behind decisions on these issues. It noted that the committee had had the benefit of hearing from K at length and that, having made its findings, it had been entitled to reach these conclusions.

The court agreed with the committee’s conclusion that K’s misconduct demonstrated an attitudinal problem, and that it could not be confident that, if a further issue with her practice arose in the future, she might not seek to conceal it. It dismissed K’s arguments, holding that her repeated concealment of her dismissal demonstrated that she was willing to put the safety of patients at risk. It stated that she “was seeking to conceal evidence of concerns about her levels of competence so as, if she was successful, to enable her to continue being entrusted with the care of patients whom she was not competent, or may not have been competent, to care for”.

The appeal was, accordingly, dismissed.