Acting to stop harm: the FCA and Appointed Representatives
Is a Panel entitled to undertake its own ‘detective work’ and take into account factors that have not been the subject of the allegations made against the Registrant, have not been adduced in evidence and have not been discussed during the proceedings when reaching their decision?
The appellant nurse, S, was employed as a clinic manager of an orthopaedic out-patient department at an NHS Authority (“the Authority”). Between November 2006 and March 2007 S claimed that he was unable to work due to sickness. It was later identified that S had in fact worked and been paid for three shifts for the Nurse Bank during his sickness absence on consecutive nights from 19 to 22 December 2006. An investigation was undertaken by the Authority and S was dismissed. S was referred to the Nursing and Midwifery Council (“NMC”) and the charges against him included dishonesty in relation to the extra shifts worked.
On 4 August 2010 a Panel of the NMC’s Conduct and Competence Committee concluded that S’s fitness to practice was impaired by reason of his misconduct. The Panel imposed a Suspension Order for a period of 12 months. Amongst the evidence considered by the Panel was a witness statement from AS, payroll team manager for the Authority. Exhibited to her statement, AS provided computer records detailing shifts recorded as worked by S over the nights in question in December 2006. When giving reasons for their finding of impairment the Panel referred to information they had identified within these records showing that S had also worked four non-consecutive shifts in January 2007. These shifts did not form part of the charges brought by the NMC against S, had not been referred to in AS’ witness statement, nor had they been raised by the NMC during the course of the hearing. The Panel took this evidence into account in order to surmise that there had been a repetition of S’s misconduct; this undermined S’s assertion that had he been dishonest, he would have worked more than three shifts for personal gain.
S lodged an appeal against the NMC’s decision on the basis that the Panel had erred in taking into account evidence that was not contained within the charges made against S; nor had it been raised during the course of the hearing by the Council’s Presenting Officer nor in questioning of the witnesses. In those circumstances S said that this should not have been taken into account at all.
The appeal was allowed on the basis that the further ‘detective work’ undertaken by the Panel was a serious error and that their decision was likely to have been considerably influenced by the conclusion that S’s conduct was not isolated but repetitive in nature. It was held that the existing decision of the Panel could not stand and the case was remitted back to them.
This decision is of significance as it provides a clear indication to Panel members that they should not step outside the boundaries of the allegations and evidence that are presented to them. The decision offers a reminder that whilst Panel members enjoy a relative freedom in taking an inquisitorial approach during proceedings, when they retire to reach a determination the factors that may be taken into account are limited to what has been presented. It is of note that the Panel were criticised for failing to seek advice from the Legal Assessor or the Presenting Officer upon discovering further potential incidents of misconduct and deciding unilaterally that this should form part of their consideration.
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