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Page 1 of 41
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
Page 2 of 41
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.
Page 3 of 41
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
7 39 Saturday, 8 December 2012
8 40 Sunday, 9 December 2012
9 42 Sunday, 16 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
Page 4 of 41
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
34 4 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.
Page 5 of 41
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.
Page 6 of 41
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
1 26 Monday, 9 April 2012
2 30 Sunday, 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
7 39 Saturday, 8 December 2012
8 40 Sunday, 9 December 2012
9 42 Sunday, 16 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
15 51 Sunday, 9 June 2013
Schedule 2
Page 7 of 41
Ref Date of shift Date assigned and/or authorised
31 10 June 2012 11 June 2012
32 26 August 2012 31 August 2012
08 October 2012 29 October 2012
33 3 November 2012 5 November 2012
34 4 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
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—
Page 8 of 41
(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.
Page 9 of 41
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.
Page 10 of 41
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:
Page 11 of 41
• 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.
Page 12 of 41
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
Page 13 of 41
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.
Page 14 of 41
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
1 26 Monday, 9 April 2012
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.
Page 15 of 41
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
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 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.
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
3 32 Sunday, 26 August 2012
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 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.
Page 16 of 41
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
4 34 Sunday, 4 November 2012
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 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. 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.
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
5 37 Saturday, 1 December 2012
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 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
Page 17 of 41
entry, email or patient record for a shift of such long duration.
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
6 38 Sunday, 2 December 2012
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 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.
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
7 39 Saturday, 8 December 2012
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 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. The panel also considered
that on 10 December 2012, Miss Kinsella records 7 swipe card entries, which indicates
Page 18 of 41
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 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
8 40 Sunday, 9 December 2012
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 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. The panel also considered
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.
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
9 42 Sunday, 16 December 2012
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
Page 19 of 41
Kinsella’s computer login, and no evidence of any notes made by Miss Kinsella into
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.
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
10 44 Saturday, 26 January 2013
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 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.
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
11 45 Saturday, 23 February 2013
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.
Page 20 of 41
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
12 47 Sunday, 10 March 2013
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 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.
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
13 48 Saturday, 16 March 2013
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.
Page 21 of 41
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
14 50 Sunday, 28 April 2013
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 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.
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
15 51 Sunday, 9 June 2013
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 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.
The panel therefore concluded that it was more likely than not that Miss Kinsella was
Page 22 of 41
not at work on this date, and claimed for a bank shift for which she did not work.
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.
Page 23 of 41
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
Page 24 of 41
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:
Ref Date of shift Date assigned and/or authorised
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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Ref Date of shift Date assigned and/or authorised
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.
The panel also noted Mr 2’s swipe card record on that date, which indicated that he was
on the ward from 07:16 to 15:27. 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 20:38, as he stated in oral evidence that
he would not likely to have stayed past handover at 19:30.
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.
Ref Date of shift Date assigned and/or authorised
08 October 2012 29 October 2012
The panel noted that Miss Kinsella has swipe card records 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 07:19 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.
Ref Date of shift Date assigned and/or authorised
33 3 November 2012 5 November 2012
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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.
Ref Date of shift Date assigned and/or authorised
34 4 November 2012 5 November 2012
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 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.
Ref Date of shift Date assigned and/or authorised
44 22 January 2013 29 January 2013
Page 27 of 41
The panel noted that Miss Kinsella has no swipe card records for this date.
The panel also noted Mr 2’s swipe card record on that date, which indicated that he was
on the ward from 07:21 to 16:57. 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 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.
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.
Ref Date of shift Date assigned and/or authorised
48 16 March 2013 18 March 2013
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 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 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 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.
Page 28 of 41
Ref Date of shift Date assigned and/or authorised
49 27 April 2013 29 April 2013
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 as he
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.
The panel found that although Miss Kinsella had no swipe card records, she was
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.
Ref Date of shift Date assigned and/or authorised
50 28 April 2013 29 April 2013
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 as he
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.
The panel found that although Miss Kinsella had no swipe card records, she was
present on the ward because she made a retrospective entry on that date at 10:56, and
Page 29 of 41
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.
Ref Date of shift Date assigned and/or authorised
51 9 June 2013 10 June 2013
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 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.
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 10:42,
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
Page 30 of 41
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
Page 31 of 41
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.
Page 32 of 41
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:
Page 33 of 41
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.
Page 34 of 41
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
Page 35 of 41
(“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
Page 36 of 41
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
Page 37 of 41
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.
Page 39 of 41
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.