Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 6 March 2018 Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH Name of registrant: Deborah Iris Gallagher NMC PIN: 81C0242S Part(s) of the register: Registered Adult Nurse - 1984 Area of Registered Address: Scotland Type of Case: Conviction Panel Members: Andrew Harvey (Chair, lay member) Kathy Martyn (Registrant member) David Evans (Lay member) Legal Assessor: Colin Dunipace Panel Secretary: Amna Khan Registrant: Nursing and Midwifery Council: Not present and not represented Nasreen Anderson, Case Presenter Facts proved: Fitness to practise: Sanction: Interim Order: All Impaired Striking-off order Interim Suspension Order 18 months 1
Details of charge: That you, a registered nurse: On 5 April 2016, were convicted of embezzlement at Inverness Sheriff Court. And in light of the above, your fitness to practise is impaired by reason of your conviction 2
Decision on Service of Notice of Hearing The panel was informed at the start of this hearing that Mrs Gallagher was not in attendance and that written notice of this hearing had been sent to Mrs Gallagher s registered address by recorded delivery and by first class post on 2 February 2018. The panel took into account that the notice letter provided details of the allegations, the time, dates and venue of the hearing and, amongst other things, information about Mrs Gallagher s right to attend, be represented and call evidence, as well as the panel s power to proceed in her absence. Ms Anderson submitted that the NMC had complied with the requirements of Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the Rules ). The panel accepted the advice of the legal assessor that the NMC had complied with the relevant requirements in relation to service. In the light of all of the information available, the panel was satisfied that Mrs Gallagher has been served with notice of this hearing in accordance with the requirements of Rules 11 and 34. It noted that the rules do not require delivery and that it is the responsibility of any registrant to maintain an effective and up-to-date registered address. Decision on proceeding in the absence of the Registrant The panel next considered whether it should proceed in the absence of Mrs Gallagher. The panel had regard to Rule 21 (2) which states: (2) Where the registrant fails to attend and is not represented at the hearing, the Committee 3
(a) (b) (c) shall require the presenter to adduce evidence that all reasonable efforts have been made, in accordance with these Rules, to serve the notice of hearing on the registrant; 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; or may adjourn the hearing and issue directions. Ms Anderson invited the panel to proceed in the absence of Mrs Gallagher on the basis that she had voluntarily absented herself. Ms Anderson submitted that this is the third re-listing of this hearing and that Mrs Gallagher has not responded to any of the notices of hearing served, or objected to the proposed postponements. Ms Anderson submitted that Mrs Gallagher has not engaged with the NMC. She referred to General Medical Council v Adeogba (2016) EWCA Civ 162. The panel accepted the advice of the legal assessor in which he stated that it may, in the relevant circumstances, be in the public interest might require for a hearing to proceed in the absence of the registrant. The panel noted that its discretionary power to proceed in the absence of a registrant under the provisions of Rule 21 is not absolute and 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. The panel has decided to proceed in the absence of Mrs Gallagher. In reaching this decision, the panel has considered the submissions of the case presenter, and the advice of the legal assessor. It is clear from the correspondence that Mrs Gallagher has voluntarily absented herself. It has had regard to the factors set out in the decision of Jones and to the overall interests of justice and fairness to all parties. It noted that: No application for an adjournment has been made by Mrs Gallagher; 4
There is no reason to suppose that adjourning would secure her attendance at some future date; There is a strong public interest in the expeditious disposal of the case. There is some disadvantage to Mrs Gallagher from proceeding in her absence. However, the evidence upon which the NMC relies has been sent to her at her registered address and she has chosen not to engage. She will not be able to challenge the evidence relied upon by the NMC and will not be able to give live oral 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 Mrs Gallagher s decisions to absent herself from the hearing, waive her rights to attend and/or be represented. In these circumstances, the panel has decided that it is fair, appropriate and proportionate to proceed in the absence of Mrs Gallagher. 5
Decision and reasons on Rule 19 During the course of the hearing the panel made a request that parts of this hearing be held in private on the basis that proper exploration of this case involves reference to the health of Mrs Gallagher. The request was made pursuant to Rule 19 of the Rules. Ms Anderson, on behalf of the NMC, indicated that she supported the application to the extent that any reference to the health of Mrs Gallagher should be heard in private. The legal assessor reminded the panel that while Rule 19 (1) provides, as a starting point, that hearings shall be conducted in public, Rule 19 (3) states that the panel may hold hearings partly or wholly in private if it is satisfied that this is justified by the interests of any party or by the public interest. Having heard that there will be reference to Mrs Gallagher s health the panel determined to hold such parts of the hearing in private. 6
Background On 11 January 2015, the Nursing and Midwifery Council received a referral concerning Mrs Gallagher from a former employer, the Crocus Group Charity. At the relevant times, Mrs Gallagher was employed by the Crocus Group Charity as a Child Bereavement Coordinator. On seven occasions between April 2013 and November 2014, Mrs Gallagher embezzled monies from the Charity totalling 8,825.49. Mrs Gallagher was convicted of embezzlement on 5 April 2016 and sentenced to a community payback order on 6 December 2017 with the requirement that she undertake 100 hours of unpaid work within five months. Mrs Gallagher has not submitted any response in respect of these proceedings. 7
Decision on the findings on facts The charges concern Mrs Gallagher s conviction and, having been provided with an extract conviction from Inverness Sheriff Court, the panel found that the facts are found proved in accordance with Rules 31 (2) and (3) of the Rules which state: (2) Where a registrant has been convicted of a criminal offence (a) a copy of the certificate of conviction, certified by a competent officer of a Court in the United Kingdom (or, in Scotland, an extract conviction) shall be conclusive proof of the conviction; and (b) the findings of fact upon which the conviction is based shall be admissible as proof of those facts. (3) The only evidence which may be adduced by the registrant in rebuttal of a conviction certified or extracted in accordance with paragraph (2)(a) is evidence for the purpose of proving that she is not the person referred to in the certificate or extract. Decision on impairment The panel next went on to decide if, as a result of this conviction, Mrs Gallagher s fitness to practise is currently impaired. Neither the Nursing and Midwifery Order nor the Rules define what is meant by impairment of fitness to practise. The NMC states that the concept of fitness to practise refers to a registrant s suitability to remain on the Register without restriction. In deciding the matter of current impairment, the panel exercised its independent professional judgement. The purpose of these proceedings is not to punish the practitioner for past failings, but to protect the public against the acts and omissions of those who are not fit to practise, and to maintain public confidence in the profession and the regulatory process. The 8
panel therefore looks forwards not backwards. However, in order to form a view as to Mrs Gallagher s suitability to practise without restriction today, the panel took account of the way in which she has acted and/or failed to act in the past. The panel had regard to all of the information available to it relevant to the assessment required at this stage of the regulatory process. Applying Dame Janet Smith s test from her Fifth Shipman report, cited with approval by Mrs Justice Cox in the case of Grant, the panel considered whether Mrs Gallagher s conviction gives rise to the concern that her fitness to practise is currently impaired in the sense that she: a. has in the past brought and/or is liable in the future to bring the profession into disrepute; and/or b. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession; and/or d. has in the past acted dishonestly and/or is liable to act dishonestly in the future. In the panel s judgement, Mrs Gallagher s actions in the past are liable to bring the profession into disrepute because of the extent that they would undermine trust in the profession and breached fundamental tenets of the NMC code. The panel determined that an embezzlement conviction is in its very nature, proof of dishonesty. The panel therefore determined that Mrs Gallagher s fitness to practice was impaired at the time of her failings which resulted in her subsequent conviction. Any consideration of whether a registrant s fitness to practise is currently impaired also involved the panel determining whether the failings are easily remediable; whether they have been remedied; and the likelihood of repetition of the wrongdoing. In addressing 9
the question of the risk of repetition, the panel had regard to the issues of insight, remorse and remediation. As regards insight, the panel determined that Mrs Gallagher has provided no evidence in respect of today s proceedings from which the panel might infer that she has developed any insight at all. As regards remorse, the panel determined that Mrs Gallagher seems to have some remorse, as demonstrated within the documentary evidence produced by the NMC. However, the panel noted that Mrs Gallagher s narrative is inconsistent, not helped by her non-attendance and complete lack of engagement with proceedings and that her minimal expressions of remorse fall far below the full, meaningful remorse and insight required of her. As regards remediation, the panel determined that there is no evidence of any. The panel therefore decided that there remains a risk of repetition of Mrs Gallagher s wrongdoing. The panel noted that a conviction of embezzlement does not in itself give rise to public protection concerns, however, it bore in mind that the overarching objectives of the NMC are to protect, promote and maintain the health safety and wellbeing of the public and patients, and to uphold/protect the wider public interest, which includes promoting and maintaining public confidence in the nursing and midwifery professions and upholding the proper professional standards for members of those professions. The panel determined that, in this case, a finding of impairment on public interest grounds is required. Having regard to all of the above, the panel was satisfied that Mrs Gallagher s fitness to practise is currently impaired. Determination on sanction: 10
In reaching its decision on sanction, the panel considered all the evidence that had been placed before it throughout the hearing and had regard to its earlier findings at the facts and impairment stages. It took into account the submissions of Ms Anderson, on behalf of the NMC. It accepted the advice of the legal assessor and took into account the NMC s Sanctions Guidance. The panel approached the question of which sanction, if any, to impose, by considering the least restrictive sanction first and moving upwards. The panel bore in mind that the purpose of a sanction is not to be punitive, although it may have this effect, but is to protect patients and the wider public interest. The wider public interest includes maintaining public confidence in the profession and the regulatory process, and declaring and upholding proper standards of conduct and behaviour. The panel had regard to the overarching objective of protecting the public and also the maintenance of confidence in the profession and the NMC as its regulator. It applied the principles of proportionality, weighing the interests of the public with the registrant s interests, and took into account the mitigating and aggravating factors in this case. The panel considered that the aggravating factors in this case are as follows: Failings involve unlawful behaviour; Attitudinal concerns and lack of engagement; Mrs Gallagher has demonstrated very little insight and remorse and no remediation; The deception was pre-mediated, systematic and longstanding. Mrs Gallagher stood to gain financially from her actions. The panel considered the mitigating feature of this case to be as follows: Prior to these incidents and this conviction, Mrs Gallagher had a long nursing career without previous regulatory concern; There was no evidence of actual patient harm. 11
The panel first considered taking no further action but concluded that, given the seriousness of the dishonesty evidenced by her conviction, this would be wholly inappropriate. It determined that the nature and seriousness of the wrongdoing in this case is such that to take no further action would not serve to declare and uphold proper professional standards and maintain public confidence in the profession. To take no further action would therefore not satisfy the public interest in this case. For the same reasons, the panel concluded that a caution order would not be a sufficient or appropriate sanction. The panel then considered a conditions of practice order. While such an order might address clinical failings, the panel bore in mind that the conviction of embezzlement in this case does not concern such failings. The panel also considered that a conditions of practice order would be insufficient to satisfy the public interest considerations in this case. The panel next considered a suspension order. The panel considered that Mrs Gallagher s conduct amounted to a most serious departure from the professional standards set out in the Code. The panel considered that Mrs Gallagher s actions were deplorable and that she has demonstrated a lack of insight or remorse and has failed to engage with these proceedings. Mrs Gallagher s conviction involved the embezzlement of funds from a children s charity. Her failings involve actions which are unlawful, as well as reprehensible by the standards of the profession. The panel has identified a significant risk of repetition as a result of Mrs Gallagher s complete lack of any meaningful insight, remorse, or remediation of her failures. The panel was of the view that Mrs Gallagher s lack of 12
engagement with regulatory proceedings increased the risk of repetition in similar circumstances. In addition, the panel considered that members of the public would be significantly troubled about a member of the nursing profession being permitted to continue to practise in all the circumstances of this case. The panel considered the case of Parkinson v. NMC, [2010] EWHC 1898 (Admin) to be particularly apposite in this case: '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.' Therefore, the panel concluded that a suspension order would be neither appropriate nor proportionate in this case. Consequently, the panel moved on to consider the sanction of making a striking off order. The panel had particular regard to the following provisions of the Sanctions Guidance. Is the seriousness of the case incompatible with on-going registration? The panel exercised its judgement and carefully considered all the evidence heard during the course of these proceedings. The panel had regard to the guidance and determined that Mrs Gallagher s conviction involves a most serious departure from the standards of the profession, and further, 13
involved both dishonesty and unlawful behaviour. She has through her failings, demonstrated a complete lack of integrity and behaviour which is contrary to the fundamental tenets and principles of the nursing profession. Mrs Gallagher has demonstrated a persistent lack of insight as to the seriousness of her misconduct and abused her position of power and trust. The panel finds that this behaviour is of the utmost seriousness. The panel found that, in the light of Mrs Gallgher s significant and harmful departure from the relevant standards of the profession, public confidence in the profession and the NMC as its regulator could not be sustained with her on-going registration. The panel concluded that, notwithstanding the personal and professional hardship which such a sanction may cause her, a striking off order is the only sufficient and appropriate sanction. Such an order is necessary to satisfy the public interest in declaring and upholding proper professional standards and maintaining public confidence in the profession and the NMC. Accordingly, the panel determined to direct the Registrar to strike Mrs Gallagher s name from the Register. Mrs Gallagher may not apply for restoration until five years after the date that this decision takes effect. 14
Right of Appeal: Mrs Gallagher will have 28 days from the date when written notice of the result of this hearing is deemed to have been served upon her in which to exercise her statutory right of appeal. She will be provided with a note explaining her right of appeal. Unless she chooses to exercise that right, the direction to impose a striking-off order will take effect 28 days from when written notice of the decision is deemed served upon her. Determination on Interim Order: Ms Anderson sought an interim suspension order for 18 months to cover Mrs Gallagher s statutory 28 day appeal period and the duration of any appeal which might be made. She sought the order on the basis that it is in the public interest. In reaching its decision, the panel applied the principle of proportionality. Having already determined to impose a striking-off order, the panel has now also decided to impose an interim suspension order for a period of 18 months and directs the Registrar accordingly. The panel accepted the legal assessor s advice that it was a matter of the panel s discretion and reminded it of the wider public interest. The panel noted that an interim order is not to be imposed automatically following the imposition of its substantive order and can only be made on one or more of three grounds, namely that: it is necessary for the protection of the public; and/or it is otherwise in the public interest; and/or it is in the registrant s own interests. 15
The panel concluded that an interim order in this case is necessary for the protection of the public given the risk of repetition identified, and is otherwise in the public interest in order to maintain public confidence in the profession and the regulatory process. The panel also determined that an interim suspension order is necessary, appropriate and proportionate in the circumstances of this case. The period of this interim suspension order is 18 months. This is because the interim order is intended to cover an appeal period and, in the event that an appeal is lodged, that may be a significantly longer period, pending the resolution of any such appeal. In coming to its conclusion that 18 months is the appropriate period, the panel had regard to the length of any appeal process, noting that this includes the time likely to elapse before any appeal is listed and determined by the High Court, which may be significant. If there is no appeal, this suspension order will lapse at the end of the 28 day appeal period, when the panel s striking-off order takes effect. In the event that an appeal is lodged but concluded before the expiration of 18 months, this interim suspension order will lapse at the conclusion of the appeal. If an appeal is lodged but not concluded within the period of 18 months, it will be necessary for the NMC to apply to the High Court for an extension of this interim suspension order. The panel s decisions in this case will be confirmed to Mrs Gallagher in writing. That concludes this hearing. 16