ealthcare Regulators consider cases involving dishonesty, sexual misconduct or criminal convictions as serious cases. In assessing seriousness Tribunals will look at any risk to the public.
Some concerns are so serious that it is difficult for the registrant to be able to put things right for example, dishonesty in practise such as falsifying records, dishonesty in employment such as falsifying CVs, concerns of a sexual mature such as sexual assault or accessing child pornography or concerns such as causing deliberate harm to patients.
In order to consider the most appropriate sanction to impose, Tribunals will consider:
- The aggravating features;
- The mitigating features;
- Any interim orders;
- The registrant’s fitness to practise history.
Proportionality means finding a fair balance between the registrant’s right and the overarching objective of protecting the public. This is known as “right touch” regulation to ensure that the right amount of regulatory force is applied to deal with the risk posed but no more.
Tribunals should consider whether the sanction with the least impact on the registrant’s practise would be enough to achieve public protection. If the sanction is not enough the Tribunal should consider the next most serious sanction and when they find a sanction that is enough to achieve public protection they should stop.
Aggravating features can be any previous disciplinary or regulatory findings, abuse of trust, patient put as risk of harm and lack of insight into their failings or misconduct
Mitigating features can be insight and understanding of the issue and attempts to remediate, previous good character and personal mitigation such as illness or level of experience at the time.
Interim orders are put in place whilst a case is being investigated to tackle any risk to the public or in limited circumstances the nurse. If a nurse has been subject to an interim order, they may have only had limited chance to remediate. If a nurse has fully complied with the order this can demonstrate insight and equally if a nurse has failed to comply that may raise issue such as attitude and ability to comply with any final sanction.
Previous Fitness to Practise History can be relevant to a decision on sanction however it is not as relevant as one might think as the thrust of the Tribunal’s decision on sanction is achieving public protection.
Cases Involving Dishonesty
Generally, any case where the registrant has breached their duty of candour is considered as serious by the regulator.
Cases where the dishonesty has involved vulnerable victims, has caused a direct risk to patients or has been pre-planned or long-standing will be considered as extremely serious.
In the case of Parkinson v NMC  EWHC 1898 (Admin), Mitting J stated that “a nurse or midwife who has acted dishonestly will always be at risk being removed from the register”.
This does not however mean that the Tribunal can only remove a dishonest registrant from the Register as with in any other case the Tribunal should start with the least restrictive sanction.
Sexual misconduct will be considered particularly serious if there has been an abuse of trust.
Sexual offences involving accessing or viewing child pornography clearly will undermine public trust and any conviction for child pornography is likely to be considered as a fundamental breach of public trust.
Cases involving criminal convictions or cautions
Case law has made clear that cases involving criminal offending illustrate the principle that the reputation of the professions is more important than the fortunes of any individual member of those professions.
In terms of criminal sentences that have not been fully served, the general rule is that the registrant should not be permitted to start practising again until they have completed their sentence for a serious offence. Fleischmann  EWHC 87 (QB).
However it is important to note that whilst it is right that the Tribunal consider the rule, it does not mean that they have no choice but to remove the nurse or midwife from the register permanently. Chandrasekera v Nursing and Midwifery Council  EWHC 144 (Admin).
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