To particularise or not to - that is the question!

Sun, 05 Aug 2012

By Susan Monogan
The importance of the need to correctly particularise charges in disciplinary cases has been highlighted most recently in the case of Fabiyi v Nursing and Midwifery Council [2012] EWHC 1441 (Admin). 
This case is very interesting not just for the issue I will touch upon in this article but also in its comments on the role of the legal assessor.
In this case the Registrant, Fabiyi (referred to in the Judgment as EF), had been charged with dishonesty in working as a midwife in a non-supernumerary capacity on seven different dates. There was another charge, however, this charge was not linked with that of dishonesty. The factual matrix of the case is complex. However, for the purposes of this article suffice to say that she had been put on a period of supervised practice and it was alleged that it was explained to her that whilst she was undergoing supervised practice she could not undertake unsupervised work at her normal place of work or outside of her normal place of work.
The relevant allegation laid before the Conduct and Competency Committee (CCC) was as follows:
Whilst on a period of supervised practice at the beginning of June 2008
(a)    You worked in a non-supernumerary role midwife as an agency midwife by Mayday Healthcare PLC on: [ the seven occasions at queen Elizabeth Hospital and Wittington Hospital]
(b)    Your actions described in 1(a) were
(1)    In direct contravention of the instruction of your supervisor of Midwives, Debra Kroll
(2)    In direct contravention of the instructions of Midwife Rena Melnyczuk
(3)    Dishonest
The Registrant had admitted the fact of working on those occasions identified but denied dishonesty. In opening the case the case presenter did not explain to the CCC what the NMC was contending was the Registrant’s dishonest state of mind. He did not confine the evidence he relied upon to the four or five different instructions about agency working that had been given by Ms Kroll and Ms Melnyczuk. He relied on the Registrant’s failure to inform the Mayday agency that she was on supervised practice and that she had only informed the agency after her unsupervised working had been brought to the attention of the Trust.
The Registrant’s defence was that she had not understood the nature and significance of supervised practice. Importantly this was borne out by the NMC witnesses. During the course of the hearing there was little exploration as to why the witnesses had formed the view that the Registrant may not have fully understood what the impact would be on her ability to undertake work.
The CCC decided that the Registrant must have understood the clear prohibition on unsupervised working anywhere as that prohibition had been clearly and repeatedly communicated to her. They concluded that she dishonestly represented to the relevant third parties that she was still eligible to undertake unsupervised working and she must have known that working was dishonest in accordance with the objective standards of reasonable people. 
The decision of the CCC placed heavy reliance on the false representations (as they saw it) that had been made by the Registrant to the third parties namely, that she was able to work unsupervised. However the Registrant had not been charged with making such false representations. In consequence the CCC based its decision on what it found to have been the Registrant’s dishonesty in falsely representing to her agency and to the three hospitals concerned that she was able to accept one off non supervised agency working shift. This was not the dishonesty that the Registrant had been charged with, and therefore the CCC were not entitled to consider it without an amendment having first been made to the charge.
The NMC in this case failed to identify the nature of the dishonesty alleged and the action which it was alleged the Registrant had undertaken dishonestly. The regulator is required to identify the state of mind which it alleges that the individual had had when performing the actions which it says amounts to dishonesty. The case presenter has to identify the evidence that he is relying on.
HHJ Thornton QC observed that “The allegation as particularised adequately identifies the actions as being EF’s working external shifts on seven occasions in a non-supernumerary capacity whilst on supervised practice. However there is no full particularisation of the state of mind that EF was alleged to have had when performing those actions.” 
As the charge did not identify the nature of the dishonesty the only fair inference was that the dishonest allegation was confined to the mere fact that the Registrant worked the agency shifts having taken a conscious decision to flout her instructions that she could not undertake the work. Unfortunately the CCC put a much broader interpretation on her dishonest behaviour. The CCC decided that the dishonesty charge related to the Registrant deliberately misleading the hospitals she worked at by falsely representing to them that she was able to work there in an unsupervised capacity. It also appeared to HHJ Thornton QC that the CCC seemed “to have had in mind that EF acted dishonestly in obtaining additional payment for working shifts she was not entitled to work in relation to her record keeping and patient care whilst working unsupervised”. This demonstrates how wide the CCC was prepared to interpret the dishonesty charge. The decision of the CCC was unsurprisingly quashed.
This case highlights the need for regulators to properly particularise charges and for the case presenter to identify exactly what it is that they are alleging. All too often in some regulatory spheres the case presenters are remiss in not properly opening their case and allow the panel to fill in the gaps or, as has been seen in this case, cast the net much further than was ever intended by the regulator. The answer of course is that you must particularise the charges.

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