conduct and competence committee substantive hearing 10-12 ... · 5/12/2016 · miss kinsella was...

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Conduct and Competence Committee Substantive Hearing

10-12 May 2016

Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of Registrant Nurse: Miss Emma Mary Kinsella NMC PIN: 97I6116E

Part(s) of the register: Registered Adult Nurse – Sub part 1

1 November 2000 Area of Registered Address: England

Type of Case: Misconduct

Panel Members: Robert Barnwell (Chair, Lay member)

Wendy Warren (Registrant member)

Carla Hartnell (Registrant member)

Legal Assessor: David Marshall

Panel Secretary: Keyorra Shrimpton

Miss Kinsella: Not present and not represented

Nursing and Midwifery Council: Represented by Claire Robinson, counsel,

instructed by NMC Regulatory Legal Team.

Facts proved: 1, 2, 3, 4

Facts not proved: None

Fitness to practise: Impaired

Sanction: Striking off order Interim Order: Interim suspension order – 18 months

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Background:

It is alleged that while employed as a Band 8 Senior Nurse at Imperial College

Healthcare NHS Trust (the Trust), Miss Kinsella, on various occasions throughout 2012-

2013, dishonestly claimed for bank shifts as a band 5 or 6 nurse, that she had not

worked. It is also alleged that Miss Kinsella used Mr 2’s computer login details to

approve her bank shifts, which she alleged to have worked, in his absence.

Miss Kinsella was interviewed under caution by counter fraud specialists, one of whom

was Mr 3 on 1 October 2014. During the course of the counter fraud investigation, Miss

Kinsella’s records of the bank shifts she claimed to have worked were cross referenced

against Miss Kinsella’s swipe card entries from April 2012- August 2013. Furthermore,

Miss Kinsella’s email activity was analysed on those dates. Approximately 30-40 patient

notes were analysed by Mr 3 for dates which Miss Kinsella claimed to be at work at the

Trust working in the capacity as a Band 5 or 6 nurse on Valentine Ellis Ward (the ward).

Miss Kinsella was also subject to a disciplinary hearing at the Trust. During the

disciplinary hearing at the Trust, Miss Kinsella appears to have made certain

admissions regarding her use of Mr 2’s login to authorise shifts.

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Application to amend Charge 3, Charge 4, Schedule 1 and Schedule 2:

Ms Robinson, on behalf of the Nursing and Midwifery Council (NMC), made an

application to amend typographical errors in Charge 3, Schedule 1 and Schedule 2.

Ms Robinson applied to amend Charge 3 as follows:

3. On one or more occasions provided in Schedule 2, used Colleague A’s login in details to approve your bank shifts in his absence.

Ms Robinson applied to amend Schedule 1 as follows:

Schedule 1 Ref Date of shift

1 26 Monday, 9 April 2012

2 30 Sunday, 12 13 May 2012

3 32 Sunday, 26 August 2012

4 34 Sunday, 4 November 2012

5 37 Saturday, 1 December 2012

6. 38 Sunday, 2 December 2012


8 40 Sunday, 9 December 2012


10 44 Saturday, 26 January 2013

11 45 Saturday, 23 February 2013

12 47 Sunday, 10 March 2013

13 48 Saturday, 16 March 2013

14 50 Sunday, 28 April 2013

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15 51 Sunday, 9 June 2013

Ms Robinson applied to amend Schedule 2 as follows: Schedule 2 Ref Date of shift Date assigned and/or authorised

31 10 June 2012 1011 June 2012

32 26 August 2012 31 August 2012

08 October 2012 29 October 2012

33 3 November 2012 5 November 2012


44 22 January 2013 29 January 2013

48 16 March 2013 18 March 2013

49 27 April 2013 29 April 2013

50 28 April 2013 29 April 2013

51 9 June 2013 10 June 2013

Ms Robinson submitted that the application for the amendment to Charge 3 and

Schedule 1 and Schedule 2 would more accurately reflect the charges, and the changes

do not prejudice Miss Kinsella. She submitted that such amendments were to correct

typographic inaccuracy on the part of the NMC, and that charges of this gravity should

not be allowed to fall because of a mere slip in drafting.

Ms Robinson submitted during the course of her closing submissions that there was a

need to amend Charge 4.

4. Your actions, as set out in (2)(3) above were dishonest, in that, you knew Colleague

A had not authorised the shifts.

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Ms Robinson submitted that it is plain from the wording of the charge that it is referring

to the behaviour being alleged in Charge 3 above. She submitted that the amendment

would not alter, in any way, the dishonesty being alleged, and in no way does it

prejudice Miss Kinsella.

Having heard and accepted the advice of the legal assessor, the panel considered the

application made by Ms Robinson.

The panel had regard to Rule 28 of the Nursing and Midwifery Council (Fitness to

Practise) Rules Order of Council 2004 (as amended 2012) (“the Rules”). It decided to

allow Ms Robinson’s application. The panel concluded that the amendments to Charge

3, Schedule 1 and Schedule 2 would render them factually accurate without altering

their substance and that in the circumstances this would not be unjust to Miss Kinsella.

In relation to the application to amend Charge 4, the panel considered that this was

different from the amendment to Charge 3, Schedule 1 and Schedule 2. The panel

accepted that this was a typographical change, however considered that this might

appear to be more serious a change to an untrained legal eye. In considering Ms

Robinson’s application, the panel concluded that when reading the charges as a whole,

it is clear that Charge 4 relates to the acts referred to in Charge 3, just as Charge 2

relates to the acts referenced in Charge 1. The panel concluded that such a change to

Charge 4 would not cause injustice to Miss Kinsella.

Accordingly, the panel accepted the application to amend Charge 3, Charge 4,

Schedule 1 and Schedule 2.

Details of charges (as amended):

That you, a registrant nurse, whilst employed as a Band 8 Senior Nurse at Imperial College Healthcare NHS Trust (“the Trust”):

1. On one or more occasions as set out in Schedule 1, claimed for banks shifts which you did not work and/or did not work as a band 5 or 6 nurse.

2. Your actions, as set out in (1) above were dishonest, in that, you knew you had not worked during the shift(s) claimed and/or in the capacity as stated.

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3. On one or more occasions provided in Schedule 2, used Colleague A’s login details to approve your bank shifts in his absence.

4. Your actions, as set out in (3) above were dishonest, in that, you knew Colleague A had not authorised the shifts.

And in the light of the above, your fitness to practise is impaired by reason of your misconduct. Schedule 1 Ref Date of shift


2 30 Sunday, 13 May 2012




6. 38 Sunday, 2 December 2012










Schedule 2

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Ref Date of shift Date assigned and/or authorised

31 10 June 2012 11 June 2012

32 26 August 2012 31 August 2012





48 16 March 2013 18 March 2013

49 27 April 2013 29 April 2013

50 28 April 2013 29 April 2013

51 9 June 2013 10 June 2013

Decision on Service of Notice of Hearing:

The panel was informed at the start of this hearing that Miss Kinsella was not in

attendance and that written notice of this hearing had been sent to Miss Kinsella’s

registered address by recorded delivery and by first class post on 23 March 2016. Royal

Mail “Track and Trace” documentation confirmed this.

The panel took into account that the notice letter provided details of the allegation, the

time, dates and venue of the hearing and, amongst other things, information about Miss

Kinsella’s right to attend, be represented and call evidence, as well as the panel’s power

to proceed in her absence. The “Track and Trace” documentation indicated that the

notice was delivered on 24 March 2016. Ms Robinson submitted the NMC had complied

with the requirements of Rules 11 and 34 of the Rules.

In coming to its decision, the panel had regard to Rules 11 and 34 of the Rules as

follows:

“11.— (2) The notice of hearing shall be sent to the registrant—

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(b) ..in every case, no later than 28 days before the

date fixed for the hearing. “34.— (1) Any notice of hearing required to be served upon the

registrant shall be delivered by sending it by a postal service or other delivery service in which delivery or receipt is recorded to,

(a) ..her address in the register.”

The panel accepted the advice of the legal assessor.

In the light of all of the information available, the panel was satisfied that Miss Kinsella

has been served with notice of this hearing in accordance with the requirements of

Rules 11 and 34 of the Rules.

Decision on proceeding in the absence of the Registrant:

The panel had regard to Rule 21 (2) (b) which states:

“Where the registrant fails to attend and is not represented at the hearing, the

Committee...may, where the Committee is satisfied that the notice of hearing has

been duly served, direct that the allegation should be heard and determined

notwithstanding the absence of the registrant...”

Ms Robinson invited the panel to continue in the absence of Miss Kinsella on the basis

that she had voluntarily absented herself. Ms Robinson submitted that there had been

no engagement at all by Miss Kinsella with the NMC, to her knowledge, in relation to

these proceedings and, as a consequence, there was no reason to believe that an

adjournment would secure her attendance on some future occasion.

The panel accepted the advice of the legal assessor. The panel noted that its

discretionary power to proceed in the absence of a registrant under the provisions of

Rule 21 is one that should be exercised “with the utmost care and caution” as referred

to in the case of R. v Jones (Anthony William), (No.2) [2002] UKHL 5.

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The panel has decided to proceed in the absence of Miss Kinsella. In reaching this

decision, the panel has considered the submissions of the case presenter, and the

advice of the legal assessor. It has had particular regard to the factors set out in the

decision of Jones. It has had regard to the overall interests of justice and fairness to all

parties. It noted that:

• no application for an adjournment has been made by Miss Kinsella;

• Miss Kinsella has not engaged with the NMC and has not responded to any of

the letters sent to her about this hearing;

• Miss Kinsella has not provided the NMC with details of how she may be

contacted other than her registered address;

• there is no reason to suppose that adjourning would secure her attendance at

some future date;

• two witnesses have attended today to give live evidence;

• not proceeding may inconvenience the witnesses, their employers and, for those

involved in clinical practice, the clients who need their professional services;

• the charges relate to events that occurred in 2012-2103;

• further delay may have an adverse effect on the ability of witnesses accurately to

recall events;

• there is a strong public interest in the expeditious disposal of the case.

There is some disadvantage to Miss Kinsella in proceeding in her absence. Although

the evidence upon which the NMC relies will have been sent to her at her registered

address, she has made no response to the allegations. She will not be able to challenge

the evidence relied upon by the NMC and will not be able to give evidence on her own

behalf. However, in the panel’s judgment, this can be mitigated. The panel can make

allowance for the fact that the NMC’s evidence will not be tested by cross examination

and, of its own volition, can explore any inconsistencies in the evidence which it

identifies. Furthermore, the limited disadvantage is the consequence of Miss Kinsella’s

decisions to absent herself from the hearing, waive her rights to attend and/or be

represented and to not provide evidence or make submissions on her own behalf.

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In these circumstances, the panel has decided that it is fair, appropriate and

proportionate to proceed in the absence of Miss Kinsella. The panel will draw no

adverse inference from Miss Kinsella’s absence in its findings of fact.

Decision on the findings on facts and reasons:

In reaching its decisions on the facts, the panel considered all the evidence adduced in

this case together with the submissions made by Ms Robinson on behalf of the NMC.

The panel heard and accepted the advice of the legal assessor.

The panel was aware that the burden of proof rests on the NMC, and that the standard

of proof is the civil standard, namely the balance of probabilities. This means that the

facts will be proved if the panel was satisfied that it was more likely than not that the

incidents occurred as alleged.

In reaching its decisions on the facts, the panel took into account all the oral and

documentary evidence in this case. The panel heard live evidence from the following

witnesses on behalf of the NMC:

• Mr 1: Currently employed as the Deputy Divisional Director of Nursing, Surgery,

Cancer and Cardiovascular Services at Imperial College Healthcare NHS Trust

(“the Trust”). As of 2014, Mr 1 became the Deputy Divisional Director of Nursing

and held joint responsibility as Miss Kinsella’s professional lead.

• Mr 2: Currently employed as a Patient Flow Manager for Surgery and Cancer at

Portsmouth Hospital NHS Trust. At the time of the alleged incidents he was the

Ward Manager for Valentine Ellis Ward. Miss Kinsella was Mr 2’s line manager.

The panel also heard a further witness statement read into evidence, on behalf of the

NMC:

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• Mr 3: Currently employed as a Local Counter Fraud Specialist at TIAA. At the

time of the alleged incidents Mr 3 also held this position.

In reviewing the oral evidence of Mr 1, the panel found him to be a consistent, credible

and reliable witness of fact. The panel considered that he presented as an honest

witness who gave a careful account on what he could remember in relation to the

allegations against Miss Kinsella. The panel noted that Mr 1 gave reflective responses,

and he did not try and hide behind any of the facts presented to him. The panel found

that he was clearly intending to assist the panel to the best of his recollection.

In reviewing the oral evidence of Mr 2, the panel found him to be a somewhat difficult

witness who left the panel confused at times. The panel found Mr 2 to be naïve in

relation to certain questioning. It considered that when asked questions of a general

nature, Mr 2 would answer specifically in relation to Miss Kinsella. The panel found that

Mr 2 did not always grasp the aspects of the case that it was trying to focus on, however

it did not find that he was trying to be evasive. The panel found that Mr 2 elaborated on

his answers when questioned about specific details. It also found that Mr 2’s answers

often strayed into details that were a departure from the questions asked of him. The

panel were grateful for Mr 2’s attendance and found him to be open and assisted the

panel to the best that he could. The panel bore in mind that it may have been difficult for

Mr 2 giving evidence against Miss Kinsella as she was his mentor, and they had formed

a long trusting working relationship.

In reviewing the written evidence of Mr 3, the panel noted that Miss Kinsella had not

contacted the NMC to object to the witness statement of Mr 3 being read into evidence

by Ms Robinson. The panel accepted that Miss Kinsella had been given an opportunity

to contact the NMC if she had any objection to Mr 3’s witness statement being put

before the panel. The panel did consider Mr 3’s witness statement to be of value

because Mr 3 produced documents for the panel that was helpful to it, including a

summary of Miss Kinsella’s interview of caution.

The panel noted that Miss Kinsella has not made any admissions in respect of the

charges made against her.

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The panel separately considered each charge and made the following findings:

Charge 1:

That you, a registrant nurse, whilst employed as a Band 8 Senior Nurse at Imperial College Healthcare NHS Trust (“the Trust”):

1. On one or more occasions as set out in Schedule 1, claimed for banks shifts which you did not work and/or did not work as a band 5 or 6 nurse.

In relation to this charge the panel took into account the evidence of Mr 1, Mr 2 and Mr

3.

Mr 1 told the panel in oral evidence that Mr 3 had provided him with a copy of the swipe

card records for Miss Kinsella after his Counter Fraud Investigation. Mr 1 told the panel

that he accepted the records of the swipe card entries, and accepted the email

correspondence records. Mr 1 told the panel that during his internal investigation he did

not interview any other employees, however he told the panel in addition to the

information from Mr 3, he undertook a review of one or two patient records per shift

amounting to 30-40 records of patients that would have been on the ward at the times

that Miss Kinsella claimed to have worked. He stated there was no entry made by Miss

Kinsella in those patient records. He also indicated that he would have expected to have

found an entry in one of the random sample of records, particularly as the Trust “would

encourage staff to maintain notes contemporaneously…may expect notes to be made

more than once per shift.” Mr 1 told the panel that attempts had been made at obtaining

the allocation book for those shifts, however the allocation book had been archived, the

archive number lost, and therefore, it was irretrievable.

Mr 2 told the panel in oral evidence that there were situations where members of the

ward did share swipe cards. Mr 2 told the panel that he had lent his swipe card to other

employees on occasions but that he would not give it to them overnight. Mr 2 explained

to the panel the authorisation system for claiming for bank and agency shifts, and the

two separate computer systems, MAPS and REED to do so. Mr 2 stated that there were

occasions where he would sign off the bank shifts on the system without paying close

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attention to them in a checklist approach. Mr 2 indicated that he did not work on

weekends so would not have been able to verify if Miss Kinsella was working those

days, and if he was at work he could not remember if he had seen her or not.

Mr 3’s witness statement gives reference to summary of interview with Miss Kinsella

and Mr 2, a spreadsheet detailing Miss Kinsella’s swipe card access on the ward and

Miss Kinsella’s timesheets.

In considering the allegation as to whether on one or more occasions as set out in

Schedule 1, whether or not Miss Kinsella claimed for bank shifts for which she did not

work, the panel considered each “date of shift” as set out in Schedule 1 separately.

The panel considered all the evidence before it in its entirety, in particular the reference

made to the use of swipe card activity by Miss Kinsella, use of computer email activity

by Miss Kinsella, evidence of no clinical notes recorded by Miss Kinsella on dates that

she claimed for bank shifts on the dates indicated in Schedule 1 and Miss Kinsella’s

summary of interview under caution dated 19 December 2014.

The panel considered that swipe card use on the ward was common when working on

the ward and it was needed to gain access into and out of the ward and that every

employee has their own card. The panel also considered that it was needed for entry for

various facilities, for example. The panel accepted that there was the ability to “tailgate”

other employees, could be “buzzed in” and that there is the opportunity to share swipe

cards. The panel also noted that on many days that Miss Kinsella was at work, frequent

swipe card activity was recorded for her. The panel also considered that Miss Kinsella,

in her summary of interview, did state that when she was working clinically, she would

not bring her swipe card. The panel found this difficult to understand if it was needed so

frequently during the course of the day. The panel found it implausible that Miss Kinsella

would disturb colleagues every time she needed to enter or leave the ward or to wait for

someone to tailgate to gain access on a regular basis. The panel found the swipe card

entry records helpful, it noted that it is not entirely reliable because it heard that the

system could be abused to some degree.

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The panel ascertained that there was no external access to the Trust’s computer

system outside of the workplace, as confirmed by Mr 1 and the IT Department in the

Trust. The panel therefore found that on dates where emails were sent by Ms Kinsella,

she was within the Trust premises, not necessarily on the ward. The panel concluded

that recorded entries of emails being sent from Miss Kinsella’s account indicate that she

was at work at the Trust.

The panel also considered the clinical records that were considered by Mr 1 in his

internal investigation. The panel noted that sample taken may not have been the best

way to consider clinical records at the time, but acknowledged that the allocation book

was lost in archives. The panel found that should Miss Kinsella have been working as a

band 5 nurse for which she claimed, then it is very unlikely that she would have made

no clinical entries for her patients.

There was no direct evidence of Miss Kinsella’s absence from the ward on the relevant

dates, however, the committee was satisfied that if she had been present, there would

have been records of swipe card use or emails sent or entries in patient records.

Each date was considered as follows:

Ref Date of shift


The panel considered that on this date, there was no recorded swipe card record for

Miss Kinsella, no documented evidence indicating that an email was sent from Miss

Kinsella’s computer login, and no evidence of any notes made by Miss Kinsella into

patient records.

The panel found that when looking at the swipe card records, produced in evidence by

Mr 3, there is evidence of Miss Kinsella actively using her swipe card on Friday 6 April

2012, and Wednesday 11 April 2012.

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The panel therefore concluded that it was more likely than not that Miss Kinsella was

not at work on this date, and claimed for a bank shift for which she did not work.

Ref Date of shift

2 30 Sunday, 13 May 2012




patient records.

The panel noted that the shift claimed for was an 11.5 hour shift. It considered that if

Miss Kinsella had been present on the ward there would have been some traceable

evidence in the form of a swipe card entry, email or patient record for a shift of such

long duration.



Ref Date of shift





patient records.

The panel noted that the shift claimed for was an 11.5 hour shift, and there would have

been some traceable evidence of Miss Kinsella on the ward in the form of a swipe card

entry, email or patient record for a shift of such long duration.

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Ref Date of shift





patient records.



entry, email or patient record for a shift of such long duration. The panel also considered

that there is evidence before it in the records of swipe card entry that where Miss

Kinsella has worked on other dates, such as 2 November 2012, there is a copious

amount of swipe card activity, indicating that when at work active swipe card use was

common.



Ref Date of shift





patient records.



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Ref Date of shift





patient records.






Ref Date of shift





patient records.




that on 10 December 2012, Miss Kinsella records 7 swipe card entries, which indicates

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a more active use for someone who is on shift, and evidence of no swipe card entry

indicates that she is less likely to be at work.



Ref Date of shift





patient records.




that on 10 December 2012, Miss Kinsella records 7 swipe card entries, which indicates

a more active use for someone who is on shift, and evidence of no swipe card entry

indicates that she is less likely to be at work.

The panel also found it difficult to understand why, if someone had forgotten their swipe

card the day previously, they would forget to bring it again on the Sunday the next day.



Ref Date of shift




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patient records.






Ref Date of shift





patient records.

The panel noted the active use of Miss Kinsella’s swipe card on each side of 26 January

2013. These dates were 25 January 2013 and 28 January 2013, where there were

active swipe records on those dates.



Ref Date of shift


The panel considered that on this date, there was recorded swipe card record for Miss

Kinsella, but that there was no documented evidence indicating that an email was sent

from Miss Kinsella’s computer login, and no evidence of any notes made by Miss

Kinsella into patient records.

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The panel noted that on Miss Kinsella’s time sheet for this date, her timesheet indicates

that she started her shift at 07:30 and ended her shift at 20:00 that same day. The panel

noted that the swipe record indicates entry on Saturday 23 February 2013 between

01:30 and 01:35am, which is outside the working hours that Miss Kinsella claimed for.

The panel therefore concluded that it was more likely than not that Miss Kinsella

claimed for a bank shift for which she did not work.

Ref Date of shift





patient records.






Ref Date of shift





patient records.

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Ref Date of shift





patient records.






Ref Date of shift





patient records.





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The panel reached the overall conclusions that it is more likely than not, on the balance

of probabilities, that all of the dates in Schedule 1 indicate that Miss Kinsella was not at

work when she claimed for bank shifts.

Therefore on one or more occasions as set out in Schedule 1, Miss Kinsella claimed for

bank shifts for which she did not work.

Accordingly, this charge is found proved.

Charge 2:

2. Your actions, as set out in (1) above were dishonest, in that, you knew you had

not worked during the shift(s) claimed and/or in the capacity as stated.

In relation to this charge the panel took into all of the particulars found proved in Charge

1.

The panel considered that by making false claims for payment on bank shifts, Miss

Kinsella acted dishonestly by the standard of ordinary and honest members of the

profession, and that she would have realised that what she was doing was, by those

standards, dishonest.

Accordingly, this charge is found proved.

Charge 3:

3. On one or more occasions provided in Schedule 2, used Colleague A’s login

details to approve your bank shifts in his absence.

In relation to this charge the panel took into account the evidence of Mr 1, Mr 2 and Mr

3.

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Mr 1 told the panel in oral evidence that there were two login systems on the Trust

computer system; one for assigning shifts, and another login to authorise bank and

agency shifts. Mr 1 told the panel that after these allegations came to light, upon

reviewing the Counter Fraud Investigation Report dated 10 December 2014, the checks

and balances with these systems were reviewed by HR as there was no formal Trust

policy at the time of the alleged incidents in relation to the two separate systems. He

told the panel it was done on a best practice basis. He told the panel that he was not

familiar with a security policy in the ward. Mr 1 told the panel that at the disciplinary

Trust hearing, Miss Kinsella admitted to using Mr 2’s login to approve shifts in his

absence. Mr 1 confirmed there was no external access to email outside the Trust

without authorisation from a line manager.

Mr 2 explained that Miss Kinsella was his boss, and that he had placed a lot of trust in

her. Mr 2 explained to the panel that there were two separate systems (MAPS then

REED SYSTEM) for authorising bank shifts, and explained these in detail to the panel.

Mr 2 told the panel in oral evidence that on the dates he was not present in the ward

due to him being on a day off, annual leave, or at the Mentorship in Practice Course, he

can be sure that he did not use the REED authorisation system to authorise Miss

Kinsella’s claimed bank shifts. Mr 2 explained that he may have authorised shifts for

Miss Kinsella, and that she was in a position to allocate shifts to herself using her login.

Mr 2’s evidence was that his login details were written in a diary which was kept in an

unlocked drawer in a locked office. Miss Kinsella had access to the office and knew that

his login details were kept there. Although some other people had access to the office,

they would not have known what the login details were for.

Mr 2 told the panel that on the dates where he was reported to be at work, he was

scheduled to work 07:30-15:30 Monday to Friday. He told the panel that he would stay

late to complete clinical duties to stay late as he had a demanding role, and that if the

ward was understaffed he may stay until 19:30 until handover.

Mr 3’s witness statement gives reference to summary of interview with Miss Kinsella

and Mr 2, a spreadsheet detailing Miss Kinsella’s swipe card access on the ward and

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Miss Kinsella’s timesheets. Mr 1’s witness statement indicated, “Emma admitted that

[Mr 2] did not sign off the shifts in dispute. Although she initially denied using [Mr 2’s]

password to authorise her shifts, she subsequently admitted during the hearing that she

had used his passwords to sign off the shifts.”

The panel considered that there were incidents where Mr 2 was not present on the ward

at all because he was on a day off, on annual leave or at a Mentorship in Practice

Course, as stated in oral evidence by him and confirmed in the off duty rota. The panel

also considered that there were incidents where Mr 2 was present on the date that Miss

Kinsella’s bank shifts were assigned and/or authorised, however it is probable that Mr 2

had left his shift, and the Trust by that time, as indicated by his lack of swipe activity.

The panel also considered that there were dates where Miss Kinsella herself had no

recorded swipe activity, but that she had authorised her shifts in the computer system

on those occasions, as evidenced by the swipe card entries for both PULSE and REED

Agencies in the Counter Fraud Investigation Report dated 10 December 2014.

The panel considered the following dates in the column labelled “Date assigned and/ or

authorised” in Schedule 2 individually, as set out below:


31 10 June 2012 11 June 2012

The panel noted that Miss Kinsella has swipe records that indicate she was on the ward

from 07:56 until 18:44 on this date.

The panel also noted Mr 2’s swipe card record on that date, which indicated that he was

on the ward from 07:20 to 14:11. The panel considered that although Mr 2 gave

evidence that he would often stay late past his usual shift finish time of 15:30, it would

be unusual for Mr 2 to be authorising a shift at 16:15, and that if he was on the ward

then he would be doing clinical duties and not authorising bank shifts.

The panel concluded that it was more likely than not, on the balance of probabilities,

that Miss Kinsella used Mr 2’s login details to approve her bank shift in his absence.

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32 26 August 2012 31 August 2012

The panel noted that Miss Kinsella has swipe records that indicate she was on the ward

until 20:38 on this date.




be unusual for Mr 2 to be authorising a shift at 20:38, as he stated in oral evidence that

he would not likely to have stayed past handover at 19:30.





The panel noted that Miss Kinsella has swipe card records on this date.


on the ward from 07:19 to 16:50. The time of authorisation by Mr 2 on this date was at

17:16.

The panel was not satisfied on the balance of probabilities, that Miss Kinsella used Mr

2’s login details to approve her bank shift.



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The panel noted that Miss Kinsella has no swipe card records for this date.

The panel also noted that Mr 2 stated in oral evidence that he was not working, so could

not have authorised this shift on this date. The panel also considered the off duty rota

which indicated Mr 2 had a day off on this date. The panel accepted that Mr 2 was not

present at the ward that day.

The panel found that although Miss Kinsella had no swipe card records, she was

present on the ward because she had made a retrospective entry on that date at

10:20am, and the shift was authorised by a person using Mr 2’s account at 15:07. The

panel concluded that it was more likely than not, on the balance of probabilities, that

Miss Kinsella used Mr 2’s login details to approve her bank shift in his absence.




The panel also noted that Mr 2 stated in oral evidence that he was not working, so could

not have authorised this shift on this date. The panel also considered the off duty rota

which indicated Mr 2 had a day off on this date. The panel accepted that Mr 2 was not



present on the ward because she had made a retrospective entry on that date at

10:20am, and the shift was authorised by Mr 2’s account at 15:07. The panel concluded

that it was more likely than not, on the balance of probabilities, that Miss Kinsella used

Mr 2’s login details to approve her bank shift in his absence.



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be unusual for him to be authorising a shift at 19:09, and that if he was on the ward then

he would be doing clinical duties and not authorising bank shifts. He also stated that if

he was to stay late, he would usually leave by 17:00.




48 16 March 2013 18 March 2013


The panel also noted that Mr 2 stated in oral evidence that he was not working as he

would have been on annual leave, although he could not pinpoint the exact date, but

accepted that if the rota indicated he was on annual leave then could not have

authorised this shift on this date. The panel also considered the off duty rota which

indicated Mr 2 had annual leave on that date. The panel accepted that Mr 2 was not



present on the ward because she had made a retrospective entry on that date at 08:48

and the shift was authorised by Mr 2’s account at 16:00. The panel concluded that it

was more likely than not, on the balance of probabilities, that Miss Kinsella used Mr 2’s

login details to approve her bank shift in his absence.

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49 27 April 2013 29 April 2013



would have been on his Mentorship in Practice Course, although he could not pinpoint

the exact date, but accepted that if the rota indicated he was on his Mentorship in

Practice Course then could not have authorised this shift on this date. The panel also

considered the off duty rota which indicated Mr 2 was away on that date. The panel

accepted that Mr 2 was not present at the ward that day.


present on the ward because she had a retrospective entry on that date at 09:38, and

the shift was authorised by Mr 2’s account at 12:04. The panel concluded that it was

more likely than not, on the balance of probabilities, that Miss Kinsella used Mr 2’s login

details to approve her bank shift in his absence.


50 28 April 2013 29 April 2013



would have been on his Mentorship in Practice Course, although he could not pinpoint

the exact date, but accepted that if the rota indicated he was on his Mentorship in

Practice Course then could not have authorised this shift on this date. The panel also

considered the off duty rota which indicated Mr 2 had his Mentorship in Practice Course

on that date. The panel accepted that Mr 2 was not present at the ward that day.


present on the ward because she made a retrospective entry on that date at 10:56, and

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the shift was authorised by Mr 2’s account at 12:04. The panel concluded that it was

more likely than not, on the balance of probabilities, that Miss Kinsella used Mr 2’s login

details to approve her bank shift in his absence.


51 9 June 2013 10 June 2013


The panel also noted that Mr 2 stated in oral evidence that he was at a Mentorship in

Practice Course, and although on the rota it indicates he was working, this is for

administrative purposes and that he could not have authorised this shift on this date as

he was not on the ward. The panel accepted that Mr 2 was not present at the ward that

day.


present on the ward because she had made a retrospective entry on that date at 10:42,

and the shift was authorised by Mr 2’s account at 13:55. The panel concluded that it

was more likely than not, on the balance of probabilities, that Miss Kinsella used Mr 2’s

login details to approve her bank shift in his absence. Accordingly, this charge is found PROVED. Charge 4:

4. Your actions, as set out in (3) above were dishonest, in that, you knew Colleague A had not authorised the shifts.

In relation to this charge the panel took into all of the particulars found proved in Charge

3.

By using Mr 2’s login details to authorise false claims, the panel considered that Miss

Kinsella acted dishonestly by the standard of ordinary and honest members of the

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profession, and that she would have realised that what she was doing was, by those

standards, dishonest.

Accordingly, this charge is found PROVED. Submission on misconduct and impairment:

Having announced its finding on all the facts, the panel then moved on to consider,

whether the facts found proved amount to misconduct and, if so, whether Miss

Kinsella’s fitness to practise is currently impaired. The NMC has defined fitness to

practise as a registrant’s suitability to remain on the register unrestricted.

The panel acknowledged that determinations on misconduct and impairment were

matters for its own independent judgement. It bore in mind that misconduct is a word of

general effect relating to actions or omissions falling short of the standards expected of

a registered nurse; and that no burden of proof fell upon either party at this stage. The

panel also recognised its obligation to have regard to the public interest. The public

interest includes the protection of patients, the declaration and upholding of proper

standards of conduct and behaviour, and the maintenance of public confidence in the

profession and its regulator.

In relation to misconduct, Ms Robinson invited the panel to take the view that Miss

Kinsella’s actions amounted to a departure from key elements of the preamble to The

Code: Standards of conduct, performance and ethics for nurses and midwives 2008

(“the Code”). She also drew attention to Miss Kinsella’s shortcomings in relation to

paragraph 61. She submitted that Miss Kinsella’s actions were serious, and fell

significantly short of what is expected of a nurse. She submitted that Miss Kinsella’s

behaviour had amounted to misconduct.

As to impairment, Ms Robinson submitted that charges found proved were serious and

occurred over a significant period of time, namely April 2012- June 2013. The actions

were repeated. She submitted that that the risk of repetition of Miss Kinsella’s behaviour

is therefore high. She submitted that the charges centre around dishonesty by claiming

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for bank shifts for which she did not work, which is by its nature difficult to remedy. Ms

Robinson reminded the panel to look at Miss Kinsella’s current impairment. She

submitted that there was no evidence of insight or remediation, and that Miss Kinsella

appears not to have engaged with her regulator in any way.

Ms Robinson invited the panel to conclude that Miss Kinsella’s fitness to practise is

currently impaired.

The panel has accepted the advice of the legal assessor, who reminded the panel

(amongst other things) that it must consider current impairment and could consider

whether fellow practitioners would view Miss Kinsella’s actions as deplorable.

The panel adopted a two-stage process in its consideration, as advised. First, the panel

must determine whether the facts found proved amount to misconduct. Secondly, only if

the facts found proved amount to misconduct, the panel must decide whether, in all the

circumstances, Miss Kinsella’s fitness to practise is currently impaired as a result of that

misconduct.

Panel’s decision on misconduct:

When determining whether the facts found proved amount to misconduct the panel had

regard to the terms of The code: Standards of conduct, performance and ethics for

nurses and midwives 2008, which was in effect at the time of Miss Kinsella’s actions.

The Code contains the underlying principles that guide the nursing profession and is in

place to protect the public and to ensure that proper standards of the profession are

upheld. The panel has reminded itself that registrants are personally accountable, under

the code, for acts and omissions in their practice.

The panel, in reaching its decision, had regard to the public interest and accepted that

there was no burden or standard of proof at this stage and exercised its own

professional judgement.

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The panel was of the view that Miss Kinsella’s actions did fall significantly short of the

standards expected of a registered nurse, and that her actions amounted to a breach of

the Code. Specifically:

From the preamble:

“The people in your care must be able to trust you with their health and wellbeing

To justify that trust, you must:

• be open and honest, act with integrity and uphold the reputation of your

profession

From the numbered standards:

61 “You must uphold the reputation of your profession at all times.”

57 “You must not abuse your privileged position for your own ends.”

The panel appreciated that breaches of the Code do not automatically result in a finding

of misconduct. However, the panel considered that Miss Kinsella embarked on a pre-

meditated and deliberate course of dishonesty which was a serious departure from the

standards which the public is entitled to expect of a registered nurse. The panel has, in

total, found proved two charges of dishonesty which relate to twenty five instances of

dishonest conduct by Miss Kinsella. The panel considered that the charges against Miss

Kinsella are serious, and are repeated over a significant period of time. The panel noted

that Miss Kinsella had abused her position as a senior professional Band 8 nurse for her

own personal monetary gain. The panel considered that this is serious fraud of public

money. The panel has no doubt that other members of the profession would regard

Miss Kinsella’s conduct, as found proved, as deplorable.

Therefore, in the panel’s judgement, the charges found proved amounted, individually

and collectively, to misconduct.

Panel’s decision on impairment:

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The panel then went on to consider, on the basis of the misconduct found, whether Miss

Kinsella’s fitness to practise is currently impaired. The NMC defines fitness to practise

as a registrant’s suitability to remain on the register without restriction. The panel

considered factors such as insight and remorse and whether the conduct is capable of

remedy, whether it has been remedied and whether it is likely to be repeated in the

future. It took account of the public interest, that is to say the need to protect patients,

the maintenance of public confidence in the profession and its regulation, and the

upholding and declaring of proper standards.

The panel acknowledged that dishonesty is an attitudinal failing which is difficult to

remedy. It considered that Miss Kinsella had demonstrated repeated dishonest conduct

by claiming for bank shifts which she did not work, and using Mr 2’s login details to

approve her bank shifts in his absence. The panel noted her behaviour occurred over a

significant period of time; namely April 2012 until June 2013.

The panel determined that Miss Kinsella’s course of dishonest conduct has brought the

profession into disrepute; breached the fundamental professional tenets of integrity and

trustworthiness. The panel considered that any member of the nursing profession at

every band level would understand that an authorisation process is in place to ensure

that nurses do not mistakenly or dishonestly put in incorrect entries for which they will

be paid. Any professional would take the view that a privileged position of trust, such as

that of Miss Kinsella’s to allocate and authorise bank and agency shifts, should not be

abused.

The panel noted that the only information it has in relation to insight demonstrated by

Miss Kinsella is in Mr 1’s witness statement which indicates that Miss Kinsella did

initially deny using Mr 2’s login, but later admitted to this. In the absence of any further

evidence of insight, reflection, remorse or remediation, the panel determined that it

could not exclude the possibility that Miss Kinsella would act in the same dishonest way

in the future should similar circumstances arise. As such it determined that there was a

real risk of repetition and Miss Kinsella was liable, in the future, to breach fundamental

tenets of the profession and damage the reputation of the profession.

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Furthermore, the panel was in no doubt that the need to uphold proper professional

standards and public confidence in the profession and the regulatory process would be

undermined if a finding of impairment were not made.

Having regard to all of the above, the panel was satisfied that Miss Kinsella’s fitness to

practise is currently impaired.

Determination on sanction:

Having determined that Miss Kinsella’s fitness to practise is impaired by reason of her

misconduct, the panel considered what sanction, if any, it should impose in relation to

her registration.

Ms Robinson invited the panel to have regard to the NMC’s Indicative Sanctions

Guidance (“ISG”) and submitted that sanction was a matter for the panel’s own

professional judgement. Ms Robinson submitted that Miss Kinsella’s actions as found

proved were serious matters that have been repeated over a significant period of time,

and that there is a real risk of repetition.

Ms Robinson submitted that Miss Kinsella has shown very little insight into her

dishonest behaviour and referred to this panel’s decision on impairment in respect of

insight demonstrated after she first denied claiming for bank shifts. Ms Robinson

submitted that Miss Kinsella has shown no further insight because there is no further

information from her that can be put to the panel as Miss Kinsella has not recently

engaged with the NMC. She reminded the panel that honesty and integrity are

cornerstones of the nursing profession.

In reaching this decision, the panel has had regard to all the evidence that has been

adduced in this case. The panel heard and accepted the advice of the legal assessor.

The panel has borne in mind that any sanction imposed must be appropriate and

proportionate and, although not intended to be punitive in its effect, may have such

consequences. The panel had careful regard to the Indicative Sanctions Guidance

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(“ISG”) published by the NMC. It recognised that the decision on sanction is a matter for

the panel, exercising its own independent judgement.

The panel found the following aggravating features in relation to Miss Kinsella:

• Serious charges have been found proved;

• Frequent counts of dishonesty over a protracted period of time from April 2012-

June 2013;

• Abuse of her position as a Band 8 nurse for her own monetary gain;

• Failure to act as a role model for junior colleagues;

• Lack of full admission, apology or remorse;

• Lack of evidence of insight into the impact and implications of Miss Kinsella’s

behaviour on patient safety or on her colleagues, employer or profession;

• Lack of any evidence of any steps taken to remedy her failings or to address any

personal circumstances which may have lain behind her behaviour;

The panel noted that during her interview, Miss Kinsella had claimed that she booked

into shifts because the ward was short staffed. If that was correct, her failure to work

those shifts could have deprived patients of nursing care.

The panel identified the following mitigating features in relation to Miss Kinsella:

• No allegations that her clinical competency was compromised;

• No evidence of any prior disciplinary proceedings or referrals to the NMC, as her

regulator;

• No evidence of criminal history.

• No evidence of criminal charges that came from the Counter Fraud Investigation.

The panel considered paragraphs 35-37 of the ISG which states:

35 Dishonesty, even where it does not result in direct harm to patients but is related

to matters outside of a nurse or midwife’s professional practice, for example, fraudulent

claims for monies, is particularly serious because it can undermine the trust the public

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place in the profession. Honesty, integrity and trustworthiness are to be considered the

bedrock of any nurse or midwife’s practice.

36 In Parkinson v NMC,13 Mr Justice Mitting said:

“A nurse found to have acted dishonestly is always going to be at severe risk of having

his or her name erased from the register. A nurse who has acted dishonestly, who does

not appear before the Panel either personally or by solicitors or counsel to demonstrate

remorse, a realisation that the conduct criticised was dishonest, and an undertaking that

there will be no repetition, effectively forfeits the small chance of persuading the Panel

to adopt a lenient or merciful outcome and to suspend for a period rather than direct

erasure.”

37 We do not consider that this decision means that in cases of dishonesty panels

are left with an arbitrary choice between suspension and striking-off, or that in the

absence of special circumstances a striking-off order is to be seen as a ‘default’

outcome. Rather, this decision makes clear that dishonesty is a highly serious matter

and that a striking-off order will almost always be a possible outcome.

The panel was mindful that in this case it had not heard from Miss Kinsella directly,

whether in person or by some other means. There was therefore no evidence of any

admission, acknowledgement of wrongdoing, or remorse in relation to her dishonesty,

other than the limited insight acknowledged in the later stage of her disciplinary hearing

at the Trust. There was no evidence of insight into those behaviours or reflection or

learning from them, no evidence of any steps taken to remedy her failings or to address

any underlying factors contributing to them, and no assurance from her that such

behaviour would not recur.

The panel was also mindful of its earlier finding at the impairment stage that there is a

risk of repetition of dishonesty.

The panel first considered whether to take no action but concluded that this would be

inappropriate in view of the seriousness of the case and would not serve to protect the

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public. The panel decided that it would be neither proportionate nor sufficient to take no

further action.

Next, in considering whether a caution order would be appropriate in the circumstances,

the panel took into account the ISG, which states that a caution order may be

appropriate where ‘the case is at the lower end of the spectrum of impaired fitness to

practise and the panel wishes to mark that the behaviour was unacceptable and must

not happen again.’ The panel considered that Miss Kinsella’s misconduct was at the

upper end of the spectrum and that a caution order would be inappropriate given the

seriousness of the charges found proved.

The panel next considered whether placing conditions of practice on Miss Kinsella’s

registration would be a sufficient and appropriate response. The panel was mindful that

any conditions imposed must be proportionate, measurable and workable. The panel

took into account the ISG, in particular:

63.8 It is possible to formulate conditions and to make provision as to how

conditions will be monitored.

The panel was of the view that there were no practical or workable conditions that could

be formulated, given the nature of the charges in this case. Miss Kinsella’s actions did

not relate to her clinical nursing practice itself, and given the lack of engagement by

Miss Kinsella, there was no evidence that she would be willing or able to comply with

conditions. The panel bore in mind that this case concerned attitudinal issues of

dishonesty which are not readily susceptible to conditions. The panel concluded that the

placing of conditions on Miss Kinsella’s nursing registration would not be appropriate or

workable to protect the public, and would not adequately address the seriousness of

this case and would therefore not satisfy the public interest.

The panel then went on to consider whether a suspension order would be an

appropriate sanction. Paragraph 67 indicates that a suspension order would be

appropriate where (but not limited to):

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67 This sanction may be appropriate where the misconduct is not

fundamentally incompatible with continuing to be a registered nurse

or midwife in that the public interest can be satisfied by a less

severe outcome than permanent removal from the register. This is

more likely to be the case when some or all of the following factors

are apparent (this list is not exhaustive):

67.1 A single instance of misconduct but where a lesser sanction is not

sufficient.

67.2 No evidence of harmful deep-seated personality or attitudinal problems.

67.3 No evidence of repetition of behaviour since the incident.

67.4 The panel is satisfied that the nurse or midwife has insight and does not

pose a significant risk of repeating behaviour.

The panel was of the view that Miss Kinsella’s actions at charges 1-4 were not

isolated incidents in themselves. In particular repeated conduct over a prolonged

period of time gives rise to a significant risk of repetition. Further, the panel noted

the charges relate to dishonesty, and demonstrates an attitudinal issue on Miss

Kinsella’s part. The panel has been presented with no evidence of any further

insight or of any steps taken by Miss Kinsella to attempt to remedy her actions.

The panel noted that although there is no evidence before it to suggest that she

has repeated such dishonest behaviours since these events, the panel was

mindful that it had found that she was liable to do so. The panel noted that Miss

Kinsella has had some time since the offences were committed in 2013 to reflect

on her actions, yet despite this there was no information before it today, to

indicate any progress in terms of admission, insight or remediation, and no

indication of whether Miss Kinsella wishes to continue working as a nurse. The

panel concluded that in those circumstances, a suspension order, whilst it would

protect the public whilst it was in force, would not be likely to result in any

development of insight on the part of Miss Kinsella or any remediation by her of

the failings involved in this case.

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Miss Kinsella’s conduct amounted to a serious departure from the standards expected

of a registered nurse. The panel determined that the behaviour in this case was so

serious that a suspension order would not be sufficient to mark the charges found

proved in order to satisfy the public interest, and would not be an appropriate or

proportionate sanction.

Finally, in considering a striking-off order, the panel took note of the following

paragraphs of the ISG:

70.1 Is striking-off the only sanction which will be sufficient to protect

the public interest?

70.2 Is the seriousness of the case incompatible with ongoing

registration?

70.3 Can public confidence in the professions and the NMC be

sustained if the nurse or midwife is not removed from the

register?

71 This sanction is likely to be appropriate when the behaviour is

fundamentally incompatible with being a registered professional,

which may involve any of the following …

71.1 Serious departure from the relevant professional standards as set out in

key standards, guidance and advice including (but not limited to):

71.1.1 The code: Standards of conduct, performance and ethics for nurses

and midwives

The panel considered that Miss Kinsella’s actions were such significant departures from

the standards expected of a registered nurse, and were so serious in nature, that they

were fundamentally incompatible with her remaining on the register. The panel was of

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the view that members of the public would not consider that a nurse who has

demonstrated repeated dishonest conduct should be allowed to remain on the register.

Balancing all of these factors and after taking into account all the evidence before it

during this case, the panel determined that the only sanction which would be sufficient

to satisfy the public interest in this case was a striking-off order.

The panel considered that such an order was necessary to mark the seriousness of the

misconduct, in order to declare and uphold proper professional standards for registered

nurses and maintain public confidence in the profession and the regulatory process.

The panel considered this case very carefully and decided to make a striking-off order.

It directs the registrar to strike Miss Kinsella off the register. The effect of this order is

that the NMC register will show that Miss Kinsella has been struck off the register.

Decision on interim order and reasons:

The panel has considered the submission made by Ms Robinson that an interim

suspension order should be made on the grounds that it is necessary for the protection

of the public and is otherwise in the public interest. She submitted that an interim

suspension order of a period of 18 months should be imposed to be consistent with the

panel’s findings and to allow for any potential appeal period.

The panel accepted the advice of the legal assessor.

The panel was satisfied that an interim order was necessary for the protection of the

public and otherwise in the public interest. The panel had regard to the seriousness of

the facts found proved and the reasons set out in its decision for the substantive order

in reaching the decision to impose an interim order. To do otherwise would be

incompatible with its earlier findings. The panel decided to impose an interim

suspension order for the same reasons as it imposed the substantive order. The panel

did not consider that an interim conditions of practice order was appropriate in this case

for the same reasons as given in the determination on sanction.

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The period of this interim suspension order is for 18 months to allow for the possibility of

an appeal to be made and determined. If no appeal is made then the interim suspension

order will be replaced by the substantive striking off order 28 days after Miss Kinsella is

sent the decision of this hearing in writing.

That concludes this determination.

This decision will be confirmed to Miss Kinsella in writing.

conduct and competence committee substantive hearing 10-12 ... · 5/12/2016 · miss kinsella was...

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