Particular features of misconduct charging

Misconduct

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A misconduct charge will usually start with a short preamble. The body of the charge should then contain a series of concise descriptions of the nurse, midwife or nursing associate’s acts or omissions, which individually or cumulatively we say amount to misconduct, and wherever possible, the dates on which or periods of time during which we allege the acts or omissions occurred.

We will generally not refer to the sections of the Code that may be relevant to the Fitness to Practise Committee panel’s consideration of misconduct. The Code will instead be used at the hearing as evidence of the obligations of the nurse, midwife or nursing associate.

The charge should conclude with an allegation that the nurse, midwife or nursing associate’s fitness to practise is impaired by reason of their misconduct.

Serious clinical outcomes

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If a person receiving care died or suffered serious harm because of a nurse, midwife or nursing associate’s clinical failings we may include the fact that the nurse, midwife or nursing associate’s misconduct caused the death or serious harm in the charges. Our guidance on investigating what caused the death or serious harm of a patient explains when we will do this, and why. It explains that we will only charge a nurse, midwife or nursing associate with causing death or serious harm to someone receiving care if, in those particular circumstances, any reasonable and competent professional would have known that the misconduct alleged could have resulted in serious harm. Evidence that the nurse, midwife or nursing associate’s failings caused death or serious harm will only be admissible if we bring a charge stating that the misconduct caused death or serious harm.¹

In cases where a patient died or suffered serious harm, but we have decided not to bring an additional charge of causing death or serious harm, we may refer to the death or harm as part of the background of the case. We will, however, make it very clear to the panel that we are not suggesting that the nurse, midwife or nursing associate’s misconduct caused the death or serious harm.

Motivation

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This section provides detailed guidance about the circumstances where it will be appropriate to charge either a sexual motivation, or a racial or discriminatory motivation.

Sexual misconduct and sexual motivation

In all cases relating to sexual misconduct or conduct that may have been sexually motivated, we should ensure that:

• the charges specify the misconduct alleged;
• the charges specify that the misconduct was “sexual” in nature; and
• we consider carefully whether sexual motivation should be separately charged. It may be appropriate for the charge to state that the conduct was both “sexual” in nature and sexually motivated

Our decision whether misconduct should be charged as being “sexual” in nature and whether “sexual motivation” should be separately charged will always depend on the facts of the particular case.

The key questions we will consider are whether there is evidence that the professional’s behaviour was sexually motivated and whether charging motivation will add substantially to the seriousness of the charges.

Sometimes we won't charge sexual motivation as it will be sufficient for the charge to state simply that the behaviour was sexual. An example of this could be if a nurse, midwife or nursing associate touches a patient's genitals or slaps their bottom without any clinical reason.

In a case like this, we might decide that it wasn't necessary to include an additional charge of sexual motivation because the misconduct alleged was so clearly sexual in nature.²

In cases where we charge sexual motivation, careful consideration should be given to the type of sexual motivation that is being alleged.

For example, the motivation may have been sexual gratification or the pursuit of a future relationship. It may be advisable to specify the type of sexual motivation alleged in the charges. Where sexual motivation is charged and is then denied by the nurse, midwife or nursing associate at a hearing, they must be given a clear opportunity to respond to the allegation of sexual motivation in cross-examination.³

In drafting charges relating to sexualised language and behaviour, careful thought will need to be given to the motivation for the behaviour, particularly when such behaviour occurs in the workplace or is connected to the professional’s role, such as sexual behaviour towards a colleague or a current or former patient.

In cases where sexualised language or behaviour is sexually motivated (for example motivated by sexual gratification or a desire for a future relationship), the sexual motivation alleged should be included in the charges.

Motivation may need to be charged where it’s required to explain the wider context of the behaviour or a predatory element. Care will also be needed to ensure that the charges capture any predatory or deliberately targeted behaviour. For example, in the case of Wood⁴ a paramedic admitted sexually motivated behaviour towards a patient. However, the Court held that the paramedic's knowledge of the patient's vulnerability, and the possibility that he pursued the patient because she was vulnerable, were potentially serious aggravating factors that should have been brought out in the charges. The case of Onyekpe⁵ also highlighted the importance of referring in the allegations to the vulnerability of the person concerned when this is relevant to assessing the seriousness of the professional’s behaviour. 

In some cases, sexualised language or behaviour may not be sexually motivated. Still, there may be an intention to cause distress or discomfort to another person, perhaps in the context of bullying, harassing or discriminatory behaviour. In such cases, the bullying, harassing or discriminatory motivation is likely to be a serious aggravating factor and should be specifically alleged in the charges.⁶

There may be some cases where there are other explanations for the sexualised language or behaviour like an unprofessional culture in the workplace. In those cases, when drafting charges, we’ll consider the impact of the unprofessional conduct on colleagues or other members of the public. We may consider that regulatory action is required in relation to serious unprofessional conduct, regardless of its motivation. However, we will always take into account the context in which the misconduct arose.

Racially motivated misconduct

There may be times when we are concerned that the actions or behaviour of one of the professionals on our register demonstrates an underlying hostility or discriminatory attitude relating to race⁷.

If that is the case, then we are likely to need to consider charges that:

(1) Specify the alleged misconduct, and

(2) Specify that the misconduct was “racially motivated”.

Racially motivated misconduct could cover a broad range of behaviour or situations, for example:

• Where somebody has said overtly racially abusive words to another person with the clear purpose of causing offence
• Where somebody has posted comments of a derogatory nature online as a means of “humour”, or where somebody has engaged in conduct with a colleague that they consider to be “banter”.
• Where a person has routinely singled out a more junior colleague for certain difficult or unpleasant tasks at work, and where the underlying concern is that the person setting the tasks is bullying the person based on their race or perceived race.

When deciding whether an act is “racially motivated” it is likely to be helpful to consider the following questions:

(a) Did the act in question have a purpose behind it which at least in significant part is referable to race? and;

(b) Was the act done in a way showing hostility or a discriminatory attitude to the relevant racial group?⁸

If we are considering actions or behaviour that includes words, we may first need to assess whether what was said was in fact racist in nature. It is important that when we assess the meaning of words we do so from an objective perspective. This means that we consider what the reasonable person, with all the information in front of them, would conclude. This part of the assessment of what was said does not include taking into consideration what the professional intended when they said⁹ it. If the professional said multiple things, then it is important that we consider cumulatively what was said, and not necessarily just focus on individual words or phrases in isolation¹⁰.

Whether the purpose behind an act is “referable to race” is likely to depend on the evidence we have in a particular case. When considering “racial motivation” we are primarily focused on what the professional had in mind at the time they said or did the thing in question.

Discriminatory motivation

The Equality Act 2010 makes it unlawful to discriminate against anyone based on the nine characteristics protected by the Act (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation).

In our guidance above we have talked about racially motivated misconduct. However, it’s important to recognise that similar principles apply to the other characteristics protected by the Equality Act. So, for example, where we consider that misconduct demonstrates an underlying hostility or a discriminatory attitude to people with disabilities, or based on a person’s religion or belief or sexual orientation, the discriminatory motivation will need to be charged separately.

Dishonesty

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Where we need to allege that a nurse, midwife or nursing associate has acted dishonestly, we will always identify the act or omission that we say was dishonest, and we will specifically allege that the nurse, midwife or nursing associate behaved dishonestly. Except where it is obvious from the conduct itself, we will also clearly explain why we say the alleged conduct was dishonest.

We will generally need to specify the nurse, midwife or nursing associate’s dishonest intention. Dishonesty describes a state of mind rather than a course of conduct, and the nurse, midwife or nursing associate’s acts or omissions will only be considered to be dishonest if they demonstrate they were intentionally seeking to mislead or wrongly take advantage of another person.

By way of example, if it is alleged that a nurse deliberately failed to disclose a conviction they received in 2010 for assault in an application form for work at a care setting, the charge may read:

“That you, a registered nurse:

On 1 January 2017, failed to disclose on an application form to the General Nursing Home that you had been dismissed from your previous employment.

Your actions as set out in charge 1 were dishonest in that you deliberately sought to mislead the nursing home by withholding this information.”

This describes the nurse’s deliberate decision not to disclose the information to the nursing home in order to conceal their former dismissal from employment. It makes clear that on our evidence, the omission was not accidental or the result of confusion or poor judgment.

Another example might be where a midwife incorrectly documents the administration of medication. This may be due to simple carelessness, or it may be a deliberate attempt to conceal an error. In the latter case, the charge might read:

“That you, a registered midwife,

Failed to administer Oxycodone to Patient A on four occasions on [date].
Incorrectly signed Patient A’s MAR chart indicating that you had administered Oxycodone on four occasions on [date].

Your conduct in signing the MAR chart as described in charge 2 was dishonest in that in doing so you deliberately sought to represent that you had administered Oxycodone when you knew that you had not.”

In this example, it should be noted the term ‘incorrectly’ is used in charge 2 rather than ‘falsely’. Use of the term ‘falsely’ to describe inaccuracy may cause confusion (because it implies dishonesty) and be unnecessarily duplicitous, given that dishonesty has been separately charged.