Ed Madden, BL
Ed Madden, BL, looks at a case in which a nurse appealed against a decision of the Conduct and Competence Committee of the Nursing and Midwifery Council to suspend his registration.
Matthew Alan Sharp, a registered nurse, was employed as a Clinic Manager with the Greater Glasgow and Clyde NHS Authority. Between November 2006 and March 2007, he was on paid sick leave. It later emerged that on the nights of 19/20, 20/21 and 21/22 December 2006, he worked hospital shifts as a ‘bank nurse’ for the Trust and was paid in respect of that work.
The matter was subsequently investigated by the Conduct and Competence Committee of the Nursing and Midwifery Council. In the course of the investigation, Mr Sharp was called upon to answer two substantive charges.
Acted dishonestly
The first was to the effect that he had acted dishonestly by working shifts as a bank nurse on the three nights in question, while claiming to be sick. The second was to the effect that he had failed to adhere to his employer’s sickness-absence policy during the period November 2006 to March 2007. Mr Sharp denied the charges.
Following the investigation, the Committee in a decision issued in August 2010 found the charges proved. They also found that Mr Sharp’s fitness to practise was impaired and suspended his registration on the Nursing Register for a period of one year. Against the decision to suspend his registration, Mr Sharp appealed to the High Court.
When the matter came on for hearing in July 2011, Counsel for Mr Sharp said that his client now admitted the factual allegations made against him; he also admitted that his fitness to practise was impaired and that he had been dishonest.
Counsel then raised, for the first time, an issue that had not been raised in the documentation grounding the appeal; that documentation had been prepared by another barrister who was no longer involved in the case.
He referred to the fact that in the course of announcing their decision in relation to Mr Sharp’s fitness to practise, the Committee referred to “evidence” which they received from a Payroll Manager with the Trust.
Repetition of misconduct
The “evidence” was that Mr Sharp had worked four additional shifts for the Trust’s nurse bank in January 2007. There had, in their view, “been a repetition of the misconduct” that formed the basis of the first charge brought against him. This, they claimed, contradicted his assertion in the course of correspondence to the Committee that, “If I was being dishonest, why only work three shifts and why not work any more for personal gain?” Later when deciding on sanction, the Committee stated: “…in addition to the three shifts… there were four further known occasions when the Registrant had repeated this dishonest behaviour.”
Counsel claimed that the Committee had wrongly taken into account what it perceived as four additional occasions of dishonest behaviour in January 2007.
While that alleged behaviour could have been the subject of an additional charge against Mr Sharp, no such charge had ever been brought. It was Counsel’s contention that it was not possible to discern how significant an impact consideration of those incidents might have had upon the overall decision of the Committee to suspend Mr Sharp from the Register.
It was Counsel’s contention that the case should have been concluded with a ‘caution’.
Other entries
Giving his judgment in the case, Mr Justice Holman said that the Trust’s Payroll Team Manager had provided a printout of the relevant ‘Bank Staff Management System’ to the Committee and given a narrative explanation of the entries in the system relating to the December 2006 payments to Mr Sharp. He said that what appears to have happened was that “a sharp-eyed member of the Committee” studied the printout and observed that there was also a reference to four other entries in January 2007, in respect of two different hospitals.
The judge said that the Committee seemed to have made an assumption “which frankly may or may not be correct” that this evidenced four further occasions on which Mr Sharp worked as a bank nurse whilst still in employment and claiming to be sick.
That “detective work” by the Committee could have considerably influenced their overall view of the misconduct and dishonesty in the case. By so doing, they had fallen into error.
In allowing the appeal, the judge decided to remit the case to the Conduct and Competence Committee of the Council. The Committee would be obliged not to take into account the alleged incidents in January 2007, unless and until they had been “formally and fairly put” to Mr Sharp before the hearing and he had been provided with an opportunity of dealing with the matter. Given the circumstances of the case, Mr Justice Holman ruled that the parties would be responsible for their own costs in the High Court.
Reference:
[2011] EWHC 2174 (Admin).
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