Local Government analysis: Discussing the judgment in Lusinga v Nursing and Midwifery Council, Sarah Harris, a senior associate (barrister) at Kingsley Napley, says the case lends further weight to the judicial commentary that a more nuanced approach is required in dishonesty-related fitness to practise matters.

Original news

Lusinga v Nursing and Midwifery Council [2017] EWHC 1458 (Admin), [2017] All ER (D) 145 (Jun)

The Administrative Court allowed the appellant's appeal against the decision of a panel of the respondent Nursing and Midwifery Council (NMC) in which the panel had found that he had dishonestly concealed his additional nursing employment and had subsequently struck him off the register. None of the mitigating features presented had beenwere mentioned in the panel's decision, and it had been unfair to hold against the appellant an alleged change of his position when what had actually changed had been the case against him under a poorly drafted dishonesty charge.

What was the factual background to the appeal?

In 2011 the appellant nurse, Mr Lusinga, contracted with his primary employer, the Jeesal Group, that he would not undertake any other employment without their written consent. The contract did not limit the number of hours he could work, or the number of employers he could work for; it merely gave his primary employer a ‘veto’ over any additional work. There are no rules, either statutory or regulatory, that limit the number of hours a week a nurse may work. Mr Lusinga, needing to provide for his recently deceased sister’s children as well as his own, was under domestic financial pressure to work long hours.

No doubt as a result of these pressures, there was a time in between late 2011 and early 2013 that Mr Lusinga was also working for another employer, Walsham Grange. While working at Walsham Grange, a fitness to practise (FTP) concern was raised. Mr Lusinga informed the Jeesal Group of this complaint, thereby disclosing that he had been working in breach of the contractual term above. When Mr Lusinga’s failure to seek permission was raised, he informed the Jeesal Group that he was not aware of that contractual requirement and at that time, the matter was not taken any further.

In October 2014, unbeknown to the Jeesal Group, Mr Lusinga began working as a nurse at Amberley Hall, working three 12-hour shifts weekly on top of the work he was doing for the Jeesal Group. In breach of his contract, once again he did not inform the Jeesal Group about the work he was doing at Amberley Hall. When asked about this, he said that he simply had not thought about it. Once the Jeesal Group found out, they merely asked Mr Lusinga to put in a written request to continue the second job so that they could consider whether it impacted on his work with them.

The FTP hearing

Mr Lusinga faced a number of allegations before a hearing at the NMC—the important ones for present purposes being drafted as follows:

  • that between 16 October 2014 and 22 April 2015 he did not inform his employer—the Jeesal Group—that he was undertaking additional nursing employment at the Amberley Hall Care Home
  • that his actions in the charge above were dishonest in that he sought to conceal his additional nursing employment from the Jeesal Group

Mr Lusinga admitted that it had been wrong not to inform the Jeesal group of his additional work and that that had been ‘dishonest’. He showed a great deal of regret and wrote a detailed and contrite reflective piece. During his evidence to the panel, Mr Lusinga’s admission to ‘dishonesty’ was explored. He said that he ‘thought it was fine to work secondary employment…to seek new challenges and extra money’ and that he had been misled by the ‘waiver’ he had signed which meant he could work unlimited hours each week (referring to a form he was asked to sign opting out of the provision in the Working Time Regulations 1998, SI 1998/1833, limiting his hours to 48 per week).

Therefore, Mr Lusinga’s ‘admission’ of ‘dishonesty’ was in fact only an admission that he had not informed his employer about having a second job as per the contractual requirement to do so. The panel recognised that the admission was not actually an admission to the dishonesty propounded in case law, but ignored it, and treated the dishonesty charge as requiring proof.

They then found the above charges proved, finding that Mr Lusinga’s fitness to practise was impaired by his misconduct and that he should be struck off. Mr Lusinga appealed on the basis that that decision was unduly harsh, and that it had failed to properly take into account the mitigating factors in the case.

Kerr J allowed the appeal holding that the charge as drafted was unclear, that insufficient weight had been given to the personal mitigation and that no thought had been given to the fact that the conduct was at the lower end of the dishonesty scale. Kerr J replaced the striking off order with a 12-month suspension order.

What issues did this case raise?

The case continues the long-running judicial commentary into the various ‘shades’ of dishonesty, and how it differs from a lack of integrity in regulatory proceedings. It brings into sharp focus the way in which a ‘black and white’ interpretation of dishonesty in FTP matters can produce confusing hearings and anomalous results, and that a more ‘nuanced’ approach to such ‘state of mind’ allegations are required.

The crux of the problem in this case was the lack of clarity in the drafting of the allegation - in particular, the fact that the only act of dishonesty relied upon was that Mr Lusinga had ‘sought to conceal’ the additional employment. As Kerr J stated at para [27]:

‘Mr Lusinga was left to work out, as best he could, what was meant by the word ’dishonest’ in charge 5. Its meaning has troubled greater legal minds than his. It may be clear enough where the substantive charge alleging the actus reus is as plain and straightforward as, for example, stealing money, claiming sick pay while working, or forging a prescription. But here the actus reus in charge 4 was withholding information in breach of contract by not seeking permission to do work which it would be lawful to do and permission to do which could not be unreasonably withheld.’

The case also raised the issue of imposing sanctions in cases of dishonesty and the weight that personal mitigation is given and what stage it is considered, as has been discussed in the cases of O v NMC [2015] EWHC 2949 (Admin), [2015] All ER (D) 201 (Oct) and Wisniewska v NMC [2016] EWHC 2672 (Admin), [2016] All ER (D) 44 (Nov). Kerr J repeated that, given that suspension is the last option before strikeoff in the ascending ladder of sanctions, a great deal of thought about personal mitigation must be considered at the stage at which suspension is discounted.

The panel was criticised for failing to mention: the positive testimonials and references that Mr Lusinga had received; the reasons for his financial difficulties; and, for failing to properly balance the high degree of public interest in Mr Lusinga continuing to practise as a competent and caring nurse.

To what extent is the judgment helpful in clarifying the law in this area? Are there any grey areas or unresolved issues remaining that practitioners should watch out for?

While not definitive, the case does lend further weight to the judicial commentary that a more nuanced approach is required in ‘dishonesty’-related FTP matters. In Newell Austin v SRA [2017] EWHC 411 (Admin) Morris, J stated that dishonesty and lack of integrity were separate concepts with ‘lack of integrity’ allegations not requiring subjective knowledge that the conduct in question lacked integrity. This was closely followed, however, by Mostyn J in Malins v SRA [2017] EWHC 835 (Admin), [2017] All ER (D) 82 (Apr) holding that ‘want of integrity and dishonesty are not only the same thing but must be proved to the same standard, in my judgment’. In June 2017, the topic was aired again in Williams v SRA [2017] EWHC 1478, [2017] All ER (D) 120 (Jun) in which Sir Brian Leveson rejected Mostyn’s analysis that dishonesty and lack of integrity were the same thing and made clear that ‘there is a real difference between them’.

Interestingly, the comments made in Bolton v Law Society [1994] 1 WLR 512 regarding dishonesty and integrity were not analysed at length in the present case. Kerr J could arguably simply have held that the actions of Mr Lusinga fell within the small residual category of dishonesty cases where striking off is not appropriate. The Master of the Rolls in Bolton accepted that ‘lapses from the required high standard takes different forms and [can be] of varying degrees’, with criminal dishonesty at one end of the scale and actions lacking integrity and probity on the other, with different sanctions being appropriate in each. No reference was made to the Court of Appeal case of The Law Society v Salsbury [2008] EWCA 1285, which also considered this same issue.

Definitive guidance is still clearly needed. However, in light of the further judicial comment made by Kerr J in the present case, it clearly seems that most judges consider that there should be a more nuanced assessment of the state of mind of registrants, rather than a ‘one size fits all’ approach in which, as Kerr J says in the present case the ‘fraudster and the thief are lumped together with the mere contract breaker’.

The case does not prescribe or suggest exactly how regulators are to formulate ‘state of mind’ allegations to ensure that they are sufficiently clear. The drafting of allegations is exceptionally easy to criticise but often difficult to do and judicial advice on the matter has been less than helpful, instructing regulators how not to draft allegations, rather than providing helpful comment on more useful breakdowns of ‘state of mind’ charges.

What are the practical implications of this judgment for practitioners?

The case reminds regulators that they should be explicit in the drafting of their allegation, to point out exactly what acts or omissions constitute the dishonest conduct in question. They should also plead a lack of integrity if that is an alternative assessment of the actions they are relying on. In any event, the registrant must be clear, well in advance of the hearing, what specific acts or omissions are being judged. The regulator should also consider very carefully that the pertinent mischief is covered. What should also arguably been pleaded in the current matter was that Mr Lusinga had not appropriately considered any implications on his fitness to practise, and therefore patient safety, the increase in hours may have had (again, something that he himself conceded).

Similarly, practitioners defending health professionals must ensure that their client is fully aware and clear on whether their admissions are actually on all fours with the way in which the regulator puts their case. They can only do this if they are clear on what that is. Therefore, clarity on this should be sought, if required, well in advance of the hearing.

What impact will this have on the NMC’s Indicative Sanctions Guidance in light of the outcome of this case and the postscript?

Kerr J stated at para [103]: ‘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.’

Given the judicial to-ing and fro-ing in recent months, it is perhaps unsurprising that definitive changes to any Indicative Sanctions Guidance have not been forthcoming. However, it is clear that the courts are calling for an end to the trite repetition of Bolton v Law Society and Parkinson that dishonesty necessarily equals strike off and that Sanctions Guidance should reflect the more thoughtful and measured balance that FTP panels need to engage in.

Are there any other issues worth mentioning here?

Kerr J added at para [104]: ‘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.’ It is unlikely that this will be directly dealt with by either the NMC or indeed similar regulators, and they will continue to rely on the expectation that all practitioners are to be responsible for their own fitness to practise.