Particular features of misconduct charging

Reference: PRE-2e

Last Updated 06/04/2018

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 or midwife’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 or midwife.

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

Serious clinical outcomes

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If a patient died or suffered serious harm because of a nurse or midwife’s clinical failings we may include the fact that the nurse or midwife caused that 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 why we will not charge a nurse or midwife with causing death or serious harm to patients unless they deliberately chose to take a risk with the safety of patients or service users in their care. Evidence that the nurse or midwife’s failings caused or contributed to the outcome will only be admissible if that is what we say in our charge.1

In cases where a patient died or suffered serious harm, but we have decided that is not part of our case against the nurse or midwife, applying the guidance on this question, we will still refer to the death or harm as part of the background. When we do this, we will make it very clear to the panel that we are not saying this made the nurse or midwife’s clinical failing more serious.

Motivation

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In general, we will only charge the motivation underlying a nurse or midwife’s misconduct where either it is a necessary element of the misconduct, or it can separately be said to amount to conduct serious enough to impair a nurse or midwife’s fitness to practise. For example, where inappropriate behaviour is sexually or racially motivated, the motivation must be separately charged, as it is a necessary component of the charge.2

There may be instances where the motivation for a particular act or omission in itself constitutes misconduct. For example, a failure to report a serious safeguarding concern could be motivated by a poorly judged decision to protect a colleague. In another case, such a failure may have been motivated by dishonesty (deliberately and knowingly misleading an employer with the intention to deceive). In the latter case, dishonesty should be alleged. In the former case, it may be appropriate to include a charge that the nurse or midwife deliberately put the interests of the colleague before those of the patient. This clearly demonstrates the alleged conduct is considered to be more serious than a negligent omission.

Dishonesty

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Where we need to allege that a nurse or midwife has acted dishonestly, we will always identify the act or omission that we say was dishonest, and we will specifically allege that the nurse or midwife behaved dishonesty. 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 or midwife’s dishonest intention. Dishonesty describes a state of mind rather than a course of conduct, and the nurse or midwife’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.

1 R (El-Baroudy) v General Medical Council [2013] EWHC 2894 (Admin)
2 See Council for the Regulation of Health Case Professionals v General Medical Council and Rajeshwar [2005] EWHC 2973 (Admin), in which the omission of an allegation that inappropriate conduct was sexually motivated was found to be procedurally irregular, and to have caused the panel’s decision to be unduly lenient

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