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Making decisions on dishonesty charges

Reference: HEA-17

Last Updated 15/12/2017

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Dishonesty and inferences

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When making decisions on charges involving dishonesty, panels of the Fitness to Practise Committee look at whether or not the conduct took place, and if so, with what state of mind.1 Any dispute over whether a nurse or midwife behaved dishonestly usually means that the panel’s findings will depend on what conclusions they can draw about the nurse or midwife’s state of mind from the basic facts. This means the panel needs to consider:

  • what the nurse or midwife knew or believed about what they were doing, the background circumstances, and any expectations of them at the time
  • whether the panel considers that the nurse or midwife’s actions were dishonest, or
  • whether there is evidence of alternative explanations, and which is more likely.

This approach will assist panels to maintain a tight focus on the central issues and express this in their reasoning.

Approaching evidence about a nurse or midwife’s state of mind

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Making decisions about a nurse or midwife’s state of mind when they did or said something which we say is dishonest, or kept silent about something we say it was dishonest to keep silent about2, will usually mean the panel needs to ask itself the following questions:

What the background facts or circumstances were and what the nurse or midwife knew or believed at the time

As part of drawing conclusions about the nurse or midwife’s state of mind, the panel must consider what the evidence says about the background facts or circumstances, and what the nurse or midwife knew or believed about what they were doing.3 There may be evidence about what was expected of the nurse or midwife in the particular circumstances.

This does not mean that the panel should hear evidence about the nurse or midwife’s own standards of honesty or their own beliefs about what the prevailing standards of honesty in society are. This is not relevant to deciding whether or not the nurse or midwife behaved dishonestly.4

Were the nurse or midwife’s actions dishonest?

The question of what is honest or dishonest in a particular set of circumstances is a question for the panel to determine by applying what it understands the standards of ordinary, decent people to be.

The law assumes that people from all walks of life can easily recognise dishonesty when they see it,5 and that in most situations it is not difficult to identify how an honest person would behave.6

Or is there evidence of an alternative explanation? Which is more likely?

It is important that the panel considers whether there is another, innocent explanation for the nurse or midwife’s conduct, which points away from them having behaved dishonestly.7 It can be useful to ask whether their mind was engaged with what they were doing, or could they simply have made an innocent or careless mistake?

The panel must address this question by identifying evidence for any other explanations, not by speculating.

As a regulator, the burden and standard of proof mean that, for an allegation to be proved, we have to satisfy the panel that it is more likely than not that it happened. In a case about dishonesty, where there is evidence of different explanations for why the nurse or midwife might have done something, the question is which explanation is more likely?

1 Uddin v General Medical Council [2012] EWHC 2669 (Admin)
2 Under the professional duty of candour, nurses and midwives must be open and honest with patients when something that goes wrong with their treatment that could cause harm or distress. This means that nurses and midwives must tell the patient (or, where appropriate, the patient’s advocate, carer or family) when something has gone wrong. Keeping silent when something has gone wrong is a breach of this professional duty.
3 Royal Brunei Airlines v Tan [1995] 2 AC 378, see 389C-E; Barlow Clowes International v Eurotrust International [2006] 1 WLR 1376, para 16; approved in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67
4 See Ivey at para 74, overruling the ‘second leg’ of R v Ghosh [1982] QB 1053.
5 Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67 para 53; further Ivey (para 48) restates that judges do not and must not attempt to define dishonesty, citing R v Feely [1973] QB 530.
6 See Royal Brunei Airlines as cited in footnote 2.
7 Uddin v General Medical Council, see footnote 1; R v Feely [1973] QB 530 as discussed in Ivey at para 67.