Conduct and Competence Committee Substantive Hearing · 4/26/2017 · Conduct and Competence Committee Substantive Hearing . 24 – 26 April 2017 . Nursing and Midwifery Council,

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Conduct and Competence Committee Substantive Hearing

24 – 26 April 2017

Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ

Name of Registrant Nurse: Ms Andrea Kim Ellis NMC PIN: 82Y3165E Part(s) of the register: RN1, Registered Nurse – Sub part 1 Adult (23 July 1985) Area of Registered Address: England Type of Case: Misconduct Panel Members: Alexander Coleman (Chair, Lay member) John Vellacott (Lay member)

Roger Cobley (Registrant member) Legal Assessor: Sanjay Lal Panel Secretary: Rajinder Jagdev Registrant: Not present and not represented Nursing and Midwifery Council: Represented by Phil Law, instructed by

NMC Regulatory Legal Team Facts proved: All Facts not proved: None Fitness to practise: Impaired Sanction: Striking Off Order Interim Order: Interim Suspension Order – 18 months

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Charges, as read: That you, while employed as a Diabetes Centre Manager by the States of Jersey

Department for Health & Social Services,

1. On or around 18 June 2013, submitted or caused to be submitted a CV that

incorrectly stated that you had:

a. a Masters in Diabetes when you did not have this qualification;

b. a CIDC Advanced Leadership qualification from Warwick University

2. On or around 18 June 2013, submitted or caused to be submitted a job

application form incorrectly declaring that you had:



3. Your actions in charges 1 and/or 2 above were dishonest in that:

a. You sought to deceive any individual reading either of the documents;

b. You sought to improve your prospects of gaining the employment in

question.

4. On an unknown date, submitted or caused to me submitted a CPD Analysis

form that incorrectly stated that you had the following qualifications:

a. Diabetes Care Insulin in Type 2 Diabetes from Warwick University in

2007

b. CIDC Advanced Leadership Course from Warwick University in 2007

5. Your actions at charge 4 were dishonest in that:

a. You sought to deceive any individual reading the document;

b. You sought to conceal that you were not adequately qualified for the

positon that you held.

And, in light of the above, your fitness to practise is impaired by reason of your

misconduct.

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Service of Notice of Hearing

The panel was informed at the start of this hearing that Ms Andrea Kim Ellis (‘Ms

Ellis’) was not in attendance and not represented.

Notice of this hearing was sent to Ms Ellis on 16 March 2017 by recorded delivery to

her address on the register, which complies with the rules of service. The correct

details of the hearing, including time, date and location were included in the notice of

hearing. In addition to this an email was also sent to Ms Ellis on 22 March 2017

setting out the details of this hearing and the charges.

The panel accepted the advice of the legal assessor who referred it to Rules 11 and

34 of The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council

2004 (as amended February 2012) (‘The Rules’).

Rule 11 states:

11.— (2) The notice of hearing shall be sent to the registrant—

(b) in every case, no later than 28 days before the date fixed for the hearing.

11. (3) The notice of hearing shall

(b) where the Committee is to consider an allegation at an initial hearing, contain

a charge particularising the allegation, which shall set out any alleged facts on which

it is based, and be accompanied by copies of any documents in support that have

not previously been disclosed to the registrant by the Council or a Practice

Committee;

Rule 34 (1) states:

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;

(b) where this differs from, and it appears to the council more likely to reach [her] at

[her] last known address, the registrant’s last known address

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In the light of the information available, the panel was satisfied that notice of this

hearing had been served in compliance and accordance with the Rules. It noted that

the Rules do not require proof of receipt.

Proceeding in absence The panel then considered proceeding in the absence of Ms Ellis. The panel took

account the proceeding in absence bundle provided at the start of this hearing and

heard submissions made by Mr Law on behalf of the Nursing and Midwifery Council

(‘the NMC’)

The panel accepted the advice of the legal assessor.

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...”

The panel had regard to the case of R v Jones [2002] UKHL 5 and was mindful that

proceeding in absence was a discretion that must be exercised with the utmost care

and caution.

The panel has decided to proceed in the absence of Ms Ellis. In reaching this

decision, the panel has regard to the overall interests of justice and fairness to all

parties. It noted that:

• Ms Ellis has not attended today’s hearing. In her undated response to the

NMC, she states ‘I will await whatever you decide’;

• no application for an adjournment has been made by her;

• there is no indication that adjourning this hearing would secure her

attendance at a future date;

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• four witnesses have attended this hearing to give oral evidence;

• there is a strong public interest in the expeditious disposal of the case.

The panel was satisfied that Ms Ellis had chosen to voluntarily absent herself. It

noted that Ms Ellis had in respect of possible attendance at this hearing disengaged

with the NMC and is not represented. There was also a public interest in the

expeditious disposal of this hearing and therefore the panel decided to proceed in

Ms Ellis’s absence.

Background The charges arose whilst Ms Ellis was employed as a Grade 6A Diabetes Centre

Manager by the States of Jersey Health and Social Services Department (‘HSSD’).

The NMC received a referral from HSSD regarding several allegations against Ms

Ellis.

It is alleged that Ms Ellis intentionally provided incorrect information concerning her

qualifications on her CV and application form as part of the application process for

employment, and in doing so acted dishonestly. It is alleged that she stated on her

CV and application form that she had obtained a number of qualifications including

an MSc in Diabetes from the University of Warwick in 2008, whereas in fact she had

not obtained these qualifications.

Ms Ellis submitted her CV and application form in June 2013 and was interviewed in

August 2013. Neither the panellists at the interview nor HSSD’s HR department

verified her qualifications at this point. Ms Ellis told the interview panel that her

certificates and portfolio were not available as they were in her suitcase which was

mislaid at the airport.

Eventually, the HSSD commenced a disciplinary investigation and Ms Ellis was

interviewed in December 2015. During the investigation she claimed that she stated

to the interviewing panel that she did not have an MSc in Diabetes.

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Ms Ellis resigned from HSSD in February 2016.

Determination on NMC application to introduce and amend charges

Mr Law on behalf of the NMC made the following applications:

(1) To introduce three additional sub-charges, namely 1c, 2c and 4c to read:

1c. completed a Modern Matron Community Training Course from Middlesex

University in 2006

2c. completed a Modern Matron Community Training Course from Middlesex

University in 2006

4c. Modern Matron Community Training at Middlesex University in 2006

(2) To amend the stem of the charges:

Which currently reads:

That you, while employed as a Diabetes Centre Manager by the States of Jersey

Department for Health & Social Services,

To read:

That you, a registered nurse, while employed as a Diabetes Centre Manager by the

States of Jersey Department for Health & Social Services,

(3) To amend charge 4:

Which currently reads:

On an unknown date, submitted or caused to me submitted a CPD Analysis form

that incorrectly stated that you had the following qualifications:

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To read:

On an unknown date, submitted or caused to be me submitted a CPD Analysis form

that incorrectly stated that you had the following qualifications:

Mr Law submitted that the introduction of the additional sub-charges would cause no

injustice to Ms Ellis in this case. He submitted that the NMC maintained its position in

relation to the allegations in respect of Ms Ellis’s qualifications.

Mr Law submitted that evidence had now been obtained by the NMC that relate to

each of the elements of the charges in question relating to Ms Ellis’s qualifications.

He submitted that the additional charges would not require Ms Ellis to change her

case in any way, since she denies all of the charges in their entirety. She was

informed of the same by email dated 22 March 2017 and she had not responded to

any proposed amendment.

Mr Law submitted that the second application to amend the stem of the charges

would be a technical change for clarification purposes.

Subsequently, Mr Law submitted that the third application to amend charge 4 would

be a change to reflect a simple typographical error.

In light of the above, Mr Law submitted to the panel that the proposed applications to

introduce the additional sub-charges and the amendments would not affect the real

mischief in this case. He submitted that these changes create no injustice in this

respect and invited the panel to consider the changes as proposed.


The panel had regard to Rule 28 of The Nursing and Midwifery Council (Fitness to

Practise) Rules Order of Council 2004 (as amended) (“the Rules”) which states:

28.—(1) At any stage before making its findings of fact … the Conduct and

Competence Committee, may amend—

(a) the charge set out in the notice of hearing; or

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(b) the facts set out in the charge, on which the allegation is based,

Unless, having regard to the merits of the case and the fairness of the proceedings,

the required amendment cannot be made without injustice.

The panel was satisfied that the amendments sought would not cause Ms Ellis any

unfairness or prejudice. Some of these were merely technical amendments and in

respect of the substantive addition of additional sub-charges, the panel noted that

Ms Ellis had not responded to the email notifying her that this would be requested.

The panel was satisfied that no prejudice would be caused to Ms Ellis because she

had submitted a written defence statement in response to the existing allegations of

falsified qualifications. Further, the proposed additional charges are of the same type

as the original charges. The gravamen of the case faced by Ms Ellis remains the

same.

Decision and reasons on NMC application pursuant to Rule 31 Mr Law on behalf of the NMC invited the panel to admit the witness statements of

two witnesses, Mr 5 and Ms 6 as new evidence in accordance with the provisions of

Rule 31 (1).

Rule 31 (1) states:

“Upon receiving the advice of the legal assessor, and subject only to the

requirements of relevance and fairness, a Practice Committee considering an

allegation may admit oral, documentary or other evidence, whether or not

such evidence would be admissible in civil proceedings.”

Mr Law submitted that both witness statements were relevant to the amended sub-

charges and furthermore, the two witnesses produced email and documentary

evidence that was relevant to the issues in the case. He submitted that both

witnesses are witness of record rather than witness of fact and told the panel that Ms

Ellis herself raised a line of enquiry into the existence of alleged email traffic. Mr Law

submitted that this evidence is relevant to the panel’s decision as it relates directly to

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the charges and that it would be fair to both the NMC and Ms Ellis to make this

evidence available.


The panel was mindful that Ms Ellis has not responded nor has she objected to the

material made available to the panel. It determined that the two witness statements

are clearly relevant to the overall nature of the case and that both witnesses are

witness of record.

In all the circumstances, the panel decided that it would be fair to both the NMC and

Ms Ellis to accept the two witness statements as evidence and to give what the

panel deemed appropriate weight once it had heard and evaluated all of the

evidence before it. The panel determined that granting the application would not

cause prejudice to Ms Ellis. The panel considered that Ms Ellis herself had initiated

the issue of email traffic as addressed in the statement of Mr 5. As regards Ms 6, she

merely adduces whether or not specific information or data is indicated in university

records.

The panel therefore granted the application to admit the witness statements as

evidence.

Accordingly, Mr Law made an application to read the two witness statements into the

record. The panel exercised its discretion to receive evidence in that manner and

accepted the witness statements into evidence under the provisions of Rule 31.

The panel proceeded to hear oral evidence from the NMC witnesses.

Decision and reasons on a further NMC application pursuant to Rule 31 During the oral evidence of Ms 2, Mr Law made reference to an exhibit document

titled ‘Candidate Interview Record’ in the NMC document bundle, Exhibit 3, which

contained a number of various exhibits. Ms 2 pointed out that the exhibit referred to

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was not her handwriting nor were they her notes. Ms 2 confirmed that she had the

correct document with her and verified that the handwritten notes on the document

were created whilst she was interviewing Ms Ellis during the interview process.

Accordingly, Mr Law made an application to the panel to adduce the correct

documentation. He submitted that the first reference to the document was clearly

made in error and the notes contained in that document were not Ms 2’s notes. Mr

Law submitted that the correct documentation has been confirmed by Ms 2 as her

own notes in her own handwriting.


Having looked at the documentation before it, the panel determined that the correct

documentation does not prejudice Ms Ellis in any way. Ms 2 states that her notes

were made contemporaneously with the job interview and in consequence, the panel

considered that it is both relevant and fair to admit them.

The panel granted the application to adduce the correct documentation into

evidence.

Decision on the findings on facts and reasons In reaching its decision on the facts, the panel considered all of the documentary and

oral evidence in this case together with the submissions made by Mr Law on behalf

of the NMC.


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 is satisfied that it is more likely than

not that the incidents occurred as alleged.

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The panel heard oral evidence from the following witnesses called on behalf of the

NMC:

• Mr 1, Corporate Governance Department, employed by the States of Jersey

Health and Social Services Department (conducted the investigation)

• Ms 2, Chief Nurse, employed by the States of Jersey Health and Social

Services Department (sat as a panel member on the interviewing panel and

interviewed Ms Ellis for the role)

• Ms 3, Divisional Lead for Ambulatory Care (at the time of the alleged event),

employed by the States of Jersey Health and Social Services Department (sat

as a panel member on the interviewing panel and interviewed Ms Ellis for the

role). Ms 3 became Ms Ellis’s direct line manager.

• Ms 4, Head of Workforce Planning for nurses and midwives, employed by the

States of Jersey Health and Social Services Department

The panel also received the two NMC witness statements, as follows:

• Mr 5, Post Adjudication Team, employed by the Nursing and Midwifery

Council (carried out post investigation work in relation to the allegations)

• Ms 6 , Professor of Nursing, employed by Middlesex University

Mr 1 - The panel found Mr 1 to be a credible witness. He provided a clear account of

his investigation.

Ms 2 - The panel found Ms 2 to be a credible witness. She was able to answer

questions put to her in a clear manner.

Ms 3 – The panel found Ms 3 to be a credible witness. She provided evidence to the

best of her recollection of the events concerned.

Ms 4 – The panel found Ms 4 to be a credible witness. The panel found that her

evidence was clear to the best of her recollection.

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The panel considered the two witness statements of Mr 5 and Ms 6 adduced in

evidence. The panel found that both Mr 5 and Ms 6 were witnesses of record and it

gave due weight to both statements.

There was no evidence before the panel of any animosity from any of the witnesses

towards Ms Ellis.

The panel also considered the written representations made by Ms Ellis.

The panel went on to consider each charge and the stem of the charge separately

and made the following findings:

1. On or around 18 June 2013, submitted or caused to be submitted a CV that incorrectly stated that you had:

In considering the stem of charge 1, the panel determined that Ms Ellis, on 18 June

2013, submitted or caused to be submitted a CV. This is supported by the oral

evidence of Mr 1 who confirmed that Ms Ellis’s CV was submitted on the internet

alongside the job application form on that date. This is further supported by the oral

evidence of Ms 3 who confirmed that Ms Ellis’s CV was attached and it was used to

shortlist her for the job post. Therefore, the panel was satisfied that Ms Ellis did

submit or caused to be submitted a CV on or around 18 June 2013.


The panel considered whether the CV incorrectly stated that Ms Ellis had a Masters

in Diabetes when she did not have this qualification. The panel heard evidence that

Ms Ellis had submitted a CV to include this qualification with a date beside it. The

panel drew the reasonable inference that when an interview candidate transcribes a

qualification on their CV with a date next to it, it is more likely than not for it to be

interpreted as the date the qualification was conferred.

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The panel was told that Ms Ellis’s account is that she informed the interviewing panel

that she did not have a Masters in Diabetes. This is contradicted by Ms 2 and Ms 3,

neither of whom recall Ms Ellis saying that. The panel also had sight of the

contemporaneous candidate interview notes from the interviewing panel. These do

not mention Ms Ellis’s account that she told the interviewing panel that she did not

have this qualification. Having heard from all of the witnesses, the panel was

satisfied that, on the balance of probabilities, Ms Ellis incorrectly stated on her CV

that she had a Masters in Diabetes when she did not have this qualification.

Therefore, the panel found this charge proved.

This charge is found PROVED.


In considering this charge, the panel took into account the oral and documentary

evidence before it. The panel was informed that this qualification was transcribed on

Ms Ellis’s CV with a date beside it. The panel considered the written evidence

adduced in this case provided by Mr 5, at Exhibit 4, containing an email dated 24

March 2017 from the compliance department from Warwick University. The

University of Warwick confirmed that Ms Ellis ‘did not undertake this programme’ and

the University does not offer this course. Therefore, the panel was satisfied that Ms

Ellis incorrectly stated in her CV that she had a CIDC Advanced Leadership

qualification from Warwick University. Therefore, the panel found this charge proved.


c. completed a Modern Matron Community Training Course from Middlesex University in 2006

In reaching its decision on this charge, the panel considered the witness statement

of Ms 6 who stated that she ‘had no knowledge of the registrant prior to being

contacted by the NMC’. Ms 6 further asserted that ‘Middlesex University has a

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student record database named MISIS. This holds a record of all; successful

applicants, details of courses taken, and results. There is no record in the databases

for an Andrea Kim Ellis. This means that no one of that name took part in a course at

the university.’

Ms 6 goes on to state:

‘There is a record for an Andrea Kim Ng. The date of birth matches that of the

registrant. […]This record shows than an Andrea Kim Ng successfully applied to

attend the university as an undergraduate through a direct entry application funded

by an NHS contract. The record also shows that Andrea Kim Ng did not complete

her enrolment which means she did not start her course. Because she did not

complete her enrolment and the amount of time that has passed there is no record of

which courses Andrea Kim Ng applied to study.’

Based on this information, the panel was satisfied that Ms Ellis did not start or

complete any programme at Middlesex University. The panel determined that Ms

Ellis incorrectly stated on her CV that she had completed a Modern Matron

Community Training Course and therefore found this charge proved.


2. On or around 18 June 2013, submitted or caused to be submitted a job application form incorrectly declaring that you had:

In considering the stem of charge 2, the panel determined, for the same reasons in

charge 1, that Ms Ellis, on 18 June 2013, submitted or caused to be submitted a job

application form. This is supported by the oral evidence of Mr 1 who confirmed that

Ms Ellis’s job application form was submitted on the internet alongside Ms Ellis’s CV

on that date. The panel was provided with the ‘Talentlink’ online application form.

Therefore, the panel was satisfied that Ms Ellis did submit or caused to be submitted

a job application form on or around 18 June 2013.


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c. completed a Modern Matron Community Training Course from

Middlesex University in 2006

The panel considered charge 2 in its entirety. It referred to the same reasons as set

out in charge 1a) 1b) and 1c) and was satisfied that both the CV and job application

form (Talentlink) contained the incorrect qualifications as identified by description

and date of supposed conferment by the awarding body. The panel therefore found

charge 2 proved for the same reasons as set out in charge 1.


3. Your actions in charges 1 and/or 2 above were dishonest in that: a. You sought to deceive any individual reading either of the

documents; b. You sought to improve your prospects of gaining the employment

in question.

The panel had regard to the test of dishonesty as set out in the case of of R v Ghosh

[1982] QB 1053 and considered whether Ms Ellis’s actions amounted to dishonesty

in accordance with that test.

The panel considered, from the evidence heard and provided in the documents

before it, whether Ms Ellis:

(1) sought to deceive any individual reading either of the documents

(2) sought to improve her prospects of gaining the employment in question

(3) Whether any such provision of (1) and (2) above was dishonest by the

standards of ordinary and honest person, and, if so

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(4) Whether Ms Ellis realised that such conduct was dishonest by the standards

of ordinary and honest person.

In reaching its decision, the panel considered whether Ms Ellis sought to deceive any

individual reading either of the documents. The panel considered that as a registered

nurse applying for a nursing post, she would have known that anyone looking at

either her CV or job application form would believe she had the qualifications that

she recorded.

The panel considered the evidence of Mr 1 who stated that when he investigated the

matter and interviewed Ms Ellis, she initially did not say if she had or didn’t have a

Master’s degree. Mr 1 told the panel that eventually she said she did not have a

Master’s in Diabetes from the University of Warwick. The panel also heard evidence

from Ms 2 who told the panel that Ms Ellis had told the interviewing panel on her

arrival for her interview for the job post that she had lost her suitcase containing her

portfolio of her certificates at the airport. The panel was satisfied that Ms Ellis sought

to deceive by recording incorrect information and by the explanation that she gave at

interview namely that she had lost her suitcase which contained her portfolio and

certificates.

The panel next considered whether Ms Ellis sought to improve her prospects of

gaining the employment in question. The panel was satisfied Ms Ellis did not have a

Master’s degree as she claimed and she did not have the necessary qualifications

for the nursing post. By recording incorrect qualifications on her CV and job

application form, the panel was satisfied that Ms Ellis sought to improve her

prospects of gaining the employment in question. By doing so, Ms Ellis was

shortlisted as a successful entry candidate by the HR Department at HSSD. The

panel was of the view that had Ms Ellis reflected her true qualifications or lack of

them, she may not have been shortlisted as a candidate for the post applied for.

The facts as found by the panel surrounding Ms Ellis’s conduct in charges 1 and/or 2

caused the panel to conclude that her conduct was dishonest by the standards of

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ordinary and honest people. Such people would expect a registered nurse to record

accurate information about her qualifications on any CV or job application.

Further, the panel concluded that Ms Ellis realised that her conduct was dishonest.

This is supported by her explanation about having lost her suitcase and her initial

equivocation about her qualifications in her interview with Mr 1.

In this regard, the panel was satisfied that the test of dishonesty had been met and

concluded that Ms Ellis had in fact realised that her conduct was dishonest by the

standards of ordinary and honest person.


4. On an unknown date, submitted or caused to be submitted a CPD Analysis form that incorrectly stated that you had the following qualifications:

In considering the stem of charge 4, the panel determined that Ms Ellis submitted or

caused to be submitted a CPD Analysis form. The panel had sight of a chain of email

correspondence between Ms 4 and Ms Ellis. Ms 4 had emailed Ms Ellis on 21

September 2015 setting out the entry criteria to which Ms Ellis responded to by email

on 23 September 2015 with a list of CPD’s. Ms 4 replied to this email and stated

‘what an extensive list of CPD’. Based on the documentary evidence before it, the

panel was therefore satisfied that Ms Ellis submitted or caused to be submitted a

CPD Analysis form.

a. Diabetes Care Insulin in Type 2 Diabetes from Warwick University

in 2007

In reaching its decision on this charge, the panel considered the documentary

evidence adduced in this case provided by Mr 5, at Exhibit 4, containing an email

dated 24 March 2017 from the compliance department at the University of Warwick.

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The University of Warwick confirmed that Ms Ellis did attend the course. It was

stated that:

‘There are four pieces of work that make up the assessment for the course; she

completed the audit and exam but not the case study or the project, so the course

was completed, but this was classed as an academic fail.’

In light of the above, the panel accepted that Ms Ellis may have completed part of

the course but she did not pass the course. Therefore, the panel was satisfied that

Ms Ellis incorrectly stated in her CPD analysis that she had the qualification in

Diabetes Care Insulin in Type 2 Diabetes.


b. CIDC Advanced Leadership Course from Warwick University in 2007

In reaching its decision on this charge, the panel referred to the same reasons as set

out in charge 1b) as the University did not offer this course. Therefore the panel

found this charge proved.


c. Modern Matron Community Training at Middlesex University in 2006

The panel considered the evidence of Ms 6. This evidence indicated that while Ms

Ellis may have initially been accepted on a programme of study at Middlesex

University, there was no information to suggest that she ever enrolled or successfully

completed any programme of study. On the balance of probabilities, the panel was

satisfied that Ms Ellis did not have this qualification. Therefore, the panel found this

charge proved.


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5. Your actions at charge 4 were dishonest in that: a. You sought to deceive any individual reading the document; b. You sought to conceal that you were not adequately qualified for

the positon that you held.

The panel adopted the same test as set out in charge 3. The panel considered, from

the evidence heard and provided in the documents before it, whether Ms Ellis’s

actions at charge 4 were dishonest in that she:

(1) Sought to deceive any individual reading the document

(2) Sought to conceal that she was not adequately qualified for the position that

she held

(3) Whether any such provision of (1) and (2) above was dishonest by the

standards of ordinary and honest persons, and, if so

(4) Whether Ms Ellis realised that such conduct was dishonest by the standards

of ordinary and honest persons.

In reaching its decision in respect of charge 5a), the panel considered whether Ms

Ellis sought to deceive any individual reading the document. The panel noted that

the email response to Ms 4 was a CPD Analysis in response to a query raised by Ms

4. The panel is satisfied that Ms Ellis did not have the qualifications as set out in

charge 4a) and 4b) above. The email response by Ms Ellis did not seek to qualify or

explain anything to the contrary and in the circumstances, the panel is satisfied that

Ms Ellis sought to deceive Ms 4 as to the extent of her qualifications.

The panel is in no doubt that Ms Ellis would have known that she did not have the

requisite qualifications and therefore to list them as part of her CPD Analysis as

completed and conferred qualifications was an attempt to conceal that she did not

have the required qualifications.

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In respect of charge 5b) the panel noted the evidence of Ms 4 who described how

Ms Ellis had mentioned a number of factors that had prevented her from providing

proof of her qualifications such as her son had them and/or they had been lost by her

mother when posting them. The panel is in no doubt that Ms Ellis by submitting a

CPD Analysis in the form of her email and stating ‘is that all you need please let me

know’ was deliberately seeking to conceal the fact that she did not have the requisite

qualifications for either her substantive post or her acting role.

Further, the panel accepted the evidence of Ms 4 that Ms Ellis told her that she had

shown her certificates to HR at the time of her interview.

The panel considered that Ms Ellis’s actions would be considered dishonest by the

standards of ordinary and honest persons. Such a person would expect a registered

nurse to be honest and accurate about their qualifications. In addition, the panel

considered that Ms Ellis realised that her conduct was dishonest and this is shown

by her changing accounts to Mr 1 and Ms 4 of the reasons why she could not

provide the certificates.

This charge is found PROVED. Determination on misconduct and impairment Having announced its findings on the facts, the panel proceeded to consider whether

Ms Ellis’s actions amounted to misconduct and, if so, whether her fitness to practise

is currently impaired by reason of that misconduct. The NMC has defined fitness to

practise as a registrant’s suitability to remain on the register without restriction.

The panel heard submissions from Mr Law on behalf of the NMC.

The panel also considered all the documentary and oral evidence in this case.


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The panel adopted a two stage process in its consideration as advised. First, the

panel determined whether the facts found proved amounted to misconduct. Second,

only if the facts found proved amount to serious misconduct, must the panel then

decide whether, in all the circumstances, Ms Ellis’s fitness to practise is currently

impaired by reason of that misconduct.

Decision and reasons on misconduct The panel accepted that there was no burden or standard of proof at this stage, and

that it was for the panel to exercise its own professional judgement.

When determining whether the facts found proved amounted to misconduct, the

panel had regard to the Code: Standards of Conduct, Performance and Ethics for

Nurses and Midwives 2008, (‘the Code’), and the 2015 Code.

The panel determined that Ms Ellis’s actions, in all charges, fell significantly short of

the standards expected of a registered nurse, and that her actions in charges 1 to 3

represented breaches of the 2008 Code as follows:

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 2008 Code

38. You must have the knowledge and skills for safe and effective practice

when working without direct supervision.

39. You must recognise and work within the limits of your competence.

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40. You must keep your knowledge and skills up to date throughout your

working life.

61. You must uphold the reputation of your profession at all times.

From the 2015 Code

Ms Ellis’s actions, in respect of charges 4 to 5, represented breaches of the 2015

Code as follows:

13. Recognise and work within the limits of your competence To achieve this, you must:

13.5. Complete the necessary training before carrying out a new role

20. Uphold the reputation of your profession at all times To achieve this, you must:

20.2 Act with honesty and integrity at all times, treating people fairly and without

discrimination, bullying or harassment

20.8 Act as a role model of professional behaviour for students and newly qualified

nurses and midwives to aspire to maintain the level of health you need to carry

out your professional role

The panel bore in mind that not every breach of professional standards, nor even

every instance of falling short of that which would reasonably be expected in the

circumstances, will, in itself, necessarily constitute misconduct sufficiently serious

that it can properly be described as misconduct going to a nurse’s fitness to practise.

However, the panel considered that the findings were sufficiently serious to amount

to misconduct. The panel considered that Ms Ellis departed from the standards

expected of a registered nurse. She was dishonest in her actions in that she

submitted or caused to be submitted a CV, a job application form and a CPD

Analysis listing professional qualifications that she did not possess.

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The panel found that Ms Ellis’s conduct was dishonest in that she sought to deceive

individuals reading these documents. The panel also found that Ms Ellis sought to

conceal that she was not adequately qualified for the position that she held and in

doing so she was acting dishonestly. The panel were conscious that honesty,

especially in respect of professional nursing qualifications must be the bedrock of the

nursing profession. Ms Ellis’s behaviour would be regarded as deplorable in a wider

public sense, and particularly so as regards her professional nursing practice.

Further, the panel found that the dishonesty in this case is serious. Ms Ellis applied

for a senior role in a managerial position with patients in her care and colleagues

under her management. The panel considered that Ms Ellis did not set an example

of good practice to her fellow colleagues.

The panel is in no doubt that Ms Ellis’s behaviour, on the facts found proved, fell far

below the standards expected of a registered nurse. Taking the matters found

proved, the panel is satisfied that Ms Ellis’s actions amount to misconduct, and that

they are sufficiently serious as to undermine her fitness to practise.

Decision and reasons on impairment

The panel moved on to consider whether, as a result of Ms Ellis’s misconduct, her

fitness to practise is currently impaired. The NMC has defined fitness to practise as a

registrant’s suitability to remain on the register without restriction.

In reaching its decision on impairment, the panel had regard both to the need to

protect patients and the need to safeguard the public interest, which includes the

maintenance of public confidence in the profession, and the upholding of proper

standards of conduct and behaviour. Nurses occupy a position of privilege and trust

in society and are expected at all times to be professional. Patients and their families

must be able to trust nurses with their care and the care of their loved ones. Nurses

must make sure that their conduct at all times justifies both their patients’ and the

wider public’s trust in the profession.

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In determining whether your fitness to practise is currently impaired, the panel

considered the judgment of Mrs Justice Cox in the case of Council for Healthcare

Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC

927 (Admin). In paragraph 74 she said;

74. “In determining whether a practitioner’s fitness to practise is impaired

by reason of misconduct, the relevant panel should generally consider

not only whether the practitioner continues to present a risk to

members of the public in his or her current role, but also whether the

need to uphold proper professional standards and public confidence in

the profession would be undermined if a finding of impairment were not

made in the particular circumstances”.

Mrs Justice Cox went on to approve the following questions posed by Dame Janet

Smith in her fifth report to the Shipman enquiry as relevant to the determination of a

nurse’s fitness to practise when considering current impairment, in paragraph 76:

“Do our findings of fact in respect of the doctor’s misconduct … show that his/her

fitness to practise is impaired in the sense that s/he:

a. has in the past acted and/or is liable in the future to act so as to put

patients at unwarranted risk of harm

b. has in the past brought and/or is liable in the future to bring the medical

profession into disrepute; and/or

c. has in the past breached and/or is liable in the future to breach one of the

fundamental tenets of the medical profession; and/or

d. has in the past acted dishonestly and/or is liable to act dishonestly in the

future”

Applying this test, the panel first considered the issue of past impairment. It had

careful regard to its findings of fact and the matters set out above and concluded that

Ms Ellis had:

• Put patients at unwarranted risk of harm

• Brought the profession into disrepute

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• Breached a fundamental tenet of the nursing profession

• Acted dishonestly

Although there is no evidence of actual patient harm was caused, there was a real

risk that patients, and colleagues, could have been placed at unwarranted risk of

harm as Ms Ellis did not have the requisite qualifications and knowledge for the role

to which she was appointed. This could have had a detrimental effect on her ability

to perform her clinical and managerial duties, with patients in her care and

colleagues who worked with her. It also deprived legitimately qualified candidates

from being appointed.

For these reasons, the panel concluded that at the time these events occurred, Ms

Ellis’s fitness to practise was impaired by reason of her misconduct.

The panel next considered whether Ms Ellis’s fitness to practise is currently impaired

and whether she is liable to repeat her misconduct. The panel had careful regard to

the issues of insight, remorse, remediation and risk of repetition.

The panel cannot be assured that there is no risk of repetition because Ms Ellis has

provided no evidence of insight, remorse or reflection. The panel found that Ms Ellis

has not demonstrated insight into the impact her actions could have had and

continue to have on patients, her profession, the NMC as its regulator, her work

colleagues and the wider public. She is a registered nurse; her actions have the

potential to substantially damage the reputation of the profession. The panel,

therefore, was not satisfied that she understood or appreciated the severity of her

actions and the consequential damage it would have caused to the profession and

the wider public interest.

With regard to remediation, there is no evidence before the panel to show that Ms

Ellis has undertaken any steps towards remediation.

The panel recognised that while matters of dishonesty are more difficult to

remediate, it was not provided with any evidence of either remediation or insight from

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Ms Ellis in relation to the dishonesty charges. The panel found that Ms Ellis

demonstrated a repeated pattern of dishonest behaviour. She provided a number of

different accounts as to the reasons why she could not provide the certificates to

reflect the qualifications she claimed to have had. Given that she has repeatedly

denied the allegations and in the absence of any remediation, the panel found that

there remains a risk of repetition.

The panel has considered Ms Ellis’s failings in context and has had full regard to the

issues of insight, remediation and risk of repetition. Based on all the evidence before

it, the panel considered that this misconduct has not been remediated and therefore

there remains a risk of repetition. The panel considered that Ms Ellis’s fitness to

practise is currently impaired on the grounds of public protection.

Furthermore, the panel considered the impact of a finding of no impairment upon the

profession. It regarded Ms Ellis’s behaviour as damaging to the profession as well as

having a detrimental effect upon public confidence. It is essential for professional

standards to be maintained. The panel had no doubt that public confidence would be

undermined if a finding of impairment was not made. A right thinking member of the

public would be shocked to discover that a registered nurse dishonestly obtained a

clinical and managerial role she was not qualified to perform.

Accordingly, the panel has determined that Ms Ellis’s fitness to practise is currently

impaired by reason of her misconduct also on the grounds of the wider public

interest.

Decision and reasons on sanction

Having determined that Ms Ellis’s fitness to practise is impaired by reason of her

misconduct, the panel considered what, if any, sanction is appropriate in this case.

The panel has decided to impose a striking-off order. The effect of this order is that

the NMC Register will show that Ms Ellis has been struck off the Register.

Page 27 of 32

In reaching this decision the panel has had regard to all the documentary and oral

evidence in this case together with the submissions from Mr Law on behalf of the

NMC.


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 has had careful regard to the NMC’s Indicative Sanctions

Guidance (“ISG”). The panel was mindful of its duty to protect the public interest.

This includes: the protection of patients and others; maintenance of public

confidence in the professions and the regulatory body; declaring and upholding

proper standards of conduct and performance. The panel recognised that the

decision on sanction is a matter for its own independent judgement.

The panel first considered the aggravating and mitigating factors in Ms Ellis’s case.

The panel viewed the following as aggravating factors:

• This is not an isolated incident – Ms Ellis repeated her dishonest behaviour on

a number of occasions over a period of time and attempted to cover up her

actions

• Ms Ellis’s misconduct in her job application was premeditated and she sought

to deceive individuals that she was adequately qualified for the position that

she applied for and eventually held

• Ms Ellis prevented legitimately qualified candidates from being appointed

• Ms Ellis has continued to deny the allegations

• Ms Ellis has failed to provide any evidence of insight or remorse and therefore

there remains a risk of repetition

• Ms Ellis has chosen to disengage with the NMC regulatory process

• Ms Ellis was performing a role of senior nursing leadership without the

appropriate qualifications

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The panel viewed the following as mitigating factors:

• Ms Ellis has not been the subject of regulatory proceedings in the past

• There have been no previous referrals to the NMC

• There have been no reported further incidents in respect of Ms Ellis’s

misconduct since the incident

• There is no evidence of actual patient harm

The panel went on to consider the appropriate sanction.

The panel took the view that her conduct fell below the standards expected of a

registered nurse. It is the panel’s duty to ensure that proper standards of conduct are

upheld to maintain public confidence in the profession.

Under Article 29 of the Nursing and Midwifery Council Order 2001, when considering

sanction, the panel recognised that it should consider the following sanctions in

ascending order, beginning with the least restrictive. It can take no further action,

make a caution order for between one and five years, make a conditions of practice

order for no more than three years, make a suspension order for a maximum of one

year or make a striking off order.

The panel first considered whether to take no further action. It decided that this

would not be appropriate in view of the nature of the misconduct, the need to protect

the public interest and the need to declare and uphold proper standards of conduct.

The panel concluded that taking no further action would be inconsistent with its

previous findings and would not address the public interest in this case.

The panel then considered whether a caution order would be appropriate. The panel

took into account the Indicative Sanctions Guidance, 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 also noted that a caution order

“might be appropriate where the nurse or midwife’s history is such that the panel is

Page 29 of 32

confident that there is no risk to the public or to patients which requires the nurse or

midwife’s practice rights to be restricted.”

The panel was mindful that any misconduct needs to be viewed on a spectrum of

seriousness. The panel did not consider that the misconduct found, which involved

dishonesty, was at the lower end of the spectrum and it considered that a caution

order would be inappropriate and insufficient in view of the nature of Ms Ellis’s

misconduct. Further, making a caution order would be inconsistent with the panel’s

findings and would not address the public interest.

The panel next considered whether placing conditions of practice on Ms Ellis’s

registration would be a sufficient and proportionate response. The panel is mindful

that any conditions imposed must be relevant, proportionate, measurable and

workable. The panel took into account that Ms Ellis’s misconduct involves

dishonesty. The panel is of the view that there are no practical or workable

conditions that could be formulated, given the nature of the charges in this case.

Since the misconduct identified in this case involves dishonesty, the panel was of the

view that this cannot be addressed through conditions of practice. The panel decided

that a conditions of practice order would not be an appropriate or proportionate

sanction, nor would it satisfy the public interest.

The panel then went on to consider the imposition of a suspension order. A

suspension order is intended to convey a message to the registrant, the profession

and the wider public as to the gravity of any unacceptable and inappropriate

behaviour, but which, in the particular circumstances of a case, falls short of being

fundamentally incompatible with continued registration.

Although a suspension order would adequately protect the public, the panel did not

consider that it would meet the wider public interest requirements. Any sanction must

maintain public confidence and declare and uphold proper standards. Ms Ellis’s

actions involved matters of dishonesty. By virtue of that dishonesty, she brought the

profession into disrepute and breached fundamental tenets of the nursing profession.

Page 30 of 32

The panel bore in mind that this was not an isolated incident. Ms Ellis repeated her

dishonest behaviour on a number of occasions over a period of time. In the panel’s

view, Ms Ellis’s actions, taken with the absence of any evidence as to insight,

remorse or remediation, were serious and fundamentally incompatible with the

expectation that a reasonable member of the public would have of the standards of a

registered nurse. The panel considered that there is a risk of repetition in the future,

if a similar situation were to occur again.

In these circumstances, the panel has determined that, notwithstanding the

mitigating factors, a suspension order would not be sufficient or appropriate to meet

the public interest.

The panel then considered the sanction of a striking-off order. In the panel’s view,

Ms Ellis’s actions represented significant departures from the standards expected of

a registered nurse, and are fundamentally incompatible with her remaining on the

Register.

The panel considered that its findings in Ms Ellis’s case demonstrate the seriousness

of her actions, and to allow her to continue practising would undermine public

confidence in the profession and in the NMC as a regulatory body. Further to allow

her to remain on the Register would not uphold or declare proper professional

standards of conduct or behaviour.

Balancing all of these factors and after taking into account all the evidence, the panel

determined that the appropriate and proportionate sanction is that of a striking-off

order. The panel considered that this order is necessary to mark the importance of

maintaining public confidence in the profession, and to send to the public and the

profession a clear message about the standards of behaviour required of a

registered nurse.

The panel determined that in the circumstances of this case, where Ms Ellis has

been dishonest, her lack of insight, remorse and remediation, the only sanction

which is sufficient and proportionate is one of striking off.

Page 31 of 32

Decision on interim order and reasons The panel heard submissions made by Mr Law on behalf of the NMC.


The panel decided to impose an interim suspension order for a period of 18 months.

Pursuant to Article 29 (11) of the Nursing and Midwifery Order 2001, this panel’s

decision will not come into effect until after the 28 day appeal period, which

commences from the date that notice of the striking off order has been served.

Article 31 of the Nursing and Midwifery Order 2001 outlines the criteria for the

imposition of an interim order. The panel may only make an interim order if it is

satisfied on one or more of three grounds; that it is necessary for the protection of

the public, is otherwise in the public interest or in Ms Ellis’s own interests. The panel

may make an interim order for a maximum of 18 months.

The panel has taken into account the principle of proportionality, bearing in mind the

balance it must strike between the interests of the public and Ms Ellis’s interests. The

panel has decided to impose an interim suspension order in this case. The panel is

satisfied that such an order is necessary for public protection and is otherwise in the

public interest.

The panel had regard to the seriousness of the misconduct and the reasons set out

in its decision for the substantive order in reaching the decision to impose an interim

suspension order. To do otherwise would be incompatible with its earlier findings.

In the circumstances the panel considered that an interim suspension order for a

period of 18 months would be appropriate to allow an appeal, if made, to be heard.

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If no appeal is lodged then the interim suspension order will be replaced by the

striking off order 28 days after Ms Ellis has been sent the decision of this hearing in

writing.

That concludes this determination.

Documents

Conduct and Competence Committee Substantive Hearing · 4/26/2017 · Conduct and Competence Committee Substantive Hearing . 24 – 26 April 2017 . Nursing and Midwifery Council,