[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Amavih-Mensah v The Nursing and Midwifery Council [2016] EWHC 1706 (Admin) (13 July 2016) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/1706.html Cite as: [2016] EWHC 1706 (Admin)

[New search] [Printable RTF version] [Help]

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL Handed down at Winchester Combined Court
		13/07/2016

Mr Justice Dove:

Introduction

1. This is an appeal brought pursuant to Article 38(1) of the Nursing and Midwifery Order 2001 in relation to a decision of the Nursing and Midwifery Council's Conduct and Competence Committee ("The CCC" or "The Panel") in a notice of their decision dated 22^nd January 2016. The CCC determined that the appellant's fitness to practise as a nurse had been impaired by reason of the misconduct which they found against him and they further concluded that it was necessary and appropriate to make a striking off order in respect of the appellant's registration as a nurse.
2. The appellant originally faced 12 charges (some of which subdivided into sub charges). At the close of the respondent's case, and in response to a submission of no case to answer, charges 7 and 8 were dismissed on the basis that the CCC were satisfied there was not a case to answer. After they had heard the evidence the CCC concluded that all of the other remaining charges were proved with the exception of charge 10.1. In the light of those findings they then went on to conclude that the appellant's fitness to practise was impaired and, as a consequence of that, the appropriate sanction in all the circumstances was a striking off order.
3. The appellant appeals against all of these findings and conclusions. At the hearing he accepted the formulation of his grounds provided by Miss Dutt in her skeleton argument. Whilst a significant number of Grounds are raised in this appeal they can essentially be distilled into four central submissions. Ground one is that the Panel's findings, in particular in relation to dishonesty, were wrong and unsupported by the evidence. This aspect of the appellant's case includes a challenge to the findings of fact made by the Panel as being incorrect and unsupported by the evidence. Ground two is that there was a procedural irregularity in relation to the proceedings such as to render them unfair. Whilst this was expressed originally as the concern that "a witness was later turned into a panel member", at the hearing the appellant clarified that his concern related in particular to the fairness of the proceedings, in relation to the evidence which he had disclosed to the respondent when participating in proceedings in relation to an interim order, prior to the final conclusion of the hearing. Ground three is the contention that the Panel did not take into account, or afford adequate weight, to the appellant's mitigation in reaching their ultimate conclusions. Ground four relates to the contention that the striking off order was disproportionate.
4. In the light of those Grounds the structure of this judgment is as follows. Firstly, it is necessary to deal with Grounds one and two, setting out the relevant legal principles, and exploring the question of whether the findings of the CCC should be quashed in the light of the submissions made by the appellant. Secondly, it is necessary to examine Grounds three and four in the context of both the relevant law applying to determinations of fitness to practise and also in determination of sanction, and considering whether there is substance in the appellant's submissions as to the conclusions which the CCC reached.

Grounds one and two: the fact finding processes and fairness

The relevant law

5. The respondent was established by the Nursing and Midwifery Order 2001 which provides in Article 3 the following objectives:

"(4) The main objective of the council in exercising its functions shall be to safeguard the health and well-being of persons using or needing the services of registrants.

(5) In exercising its functions, the Council shall –

(a) have proper regard for -

(i) the interests of persons using or needing the services of registrants in the United Kingdom, and

(ii) any differing interests of different categories of registrants;

(b) co-operate, in so far as is appropriate and reasonably practicable, with public bodies or other persons concerned with –

(i) the employment (whether or not under a contract of service) of registrants,

(ii) the education or training of nurses, midwives or other health care professionals,

(iii) the regulation of, or the co-ordination of the regulation of, other health or social care professionals,

(iv) the regulation of health services, and

(v) the provision, supervision or management of health services.

6. The 2001 Order sets out the establishment of the register and the requirements for registration as a nurse. Article 21 requires the respondent to establish and keep under review standards of conduct, performance and ethics together with establishing and keeping under review effective arrangements to protect the public from persons whose fitness to practise is impaired. Article 27 charges the CCC with the responsibility of considering allegations which are referred to it and further Article 38 governs the powers of the High Court to consider any appeal from an Order or decision of the CCC and either allow or dismiss the appeal, substitute for the decision appealed against any other decision the CCC could have made or remit the matter to, in effect, the CCC.
7. The approach to be taken by the court in relation to appeals of this kind was distilled by Cranston J in the case of Cheatle v General Medical Council [2009] EWHC 645 at paragraph 15 as follows:

"The test on appeal is whether the decision of the Fitness to Practise Panel can be said to be wrong. That to my mind follows because this is an appeal by way of rehearing, not review. In any event grave issues are at stake and it is not sufficient for intervention to turn on the more confined grounds of public law review such as irrationality. However, in considering whether the decision of a Fitness to Practise Panel is wrong the focus must be calibrated to the matters under consideration. With professional disciplinary tribunals issues of professional judgment may be at the heart of the case. Raschid was an appeal on sanction and in my view professional judgment is especially important in that type of case. As to findings of fact, however, I cannot see any difference from the court's role in this as compared with other appellate contexts. As with any appellate body there will be reluctance to characterise findings of facts as wrong. That follows because findings of fact may turn on the credibility or reliability of a witness, an assessment of which may be derived from his or her demeanour and from the subtleties of expression which are only evident to someone at the hearing. Decisions on fitness to practise, such as assessing the seriousness of any misconduct, may turn on an exercise of professional judgment. In this regard respect must be accorded to a professional disciplinary tribunal like a Fitness to Practise Panel. However, the degree of deference will depend on the circumstances. One factor may be the composition of the tribunal. In the present case the Panel had three lay members and two medical members. For what I know the decision the Panel reached might have been by majority, with the three lay members voting one way, the two medical members the other. It may be that some at least of the lay members sit on Fitness to Practise Panels regularly and have imbibed professional standards. However, I agree with the submission for the appellant in this case that I cannot be completely blind to the current composition of Fitness to Practise Panels."

8. The requirements of fairness, in relation to the procedure to be adopted by the CCC in examining allegations, is of course highly fact sensitive. It will involve a careful examination of the circumstances of the case to seek to establish whether or not the person against whom the allegations have been made has received a fair hearing, including ensuring that they have had a full and adequate opportunity to understand and meet the allegations against them and have not been prejudiced by the conduct of the procedure before the CCC in presenting their case.
9. Against the background of these well established legal principles it is necessary to examine and review the conclusions reached by the CCC in respect of those charges which were found to be proved during the first fact finding stage of the procedure.

Charges 1.1, 1.2 and 2

10. The background to all of the charges is that the appellant, who has a Bachelor of Science (Hons) degree in Management and a Master of Science degree in mental health nursing, was registered as an adult mental health nurse in November 2007. He worked in the British Army as a locum community psychiatric nurse on three occasions. In a statement in the proceedings before the CCC at paragraph 3 the appellant explained that he was employed by the South Essex Partnership Trust ("SEPT") from 16^th June 2009 until 1^st July 2010 when his contract of employment was terminated. It was terminated by dismissal on the basis of an allegation that the appellant had consumed alcohol in a service user's home. Charges one and two were formulated as follows:

"1. In or around October 2011, failed to disclose to Central North West London NHS Foundation Trust that you had been dismissed by your previous employer South Essex Partnership's NHS Foundation Trust (SEPT):

1.1 In your NHS Application form for employment as a Band 6 Community Mental Health Nurse in the Community Recovery Team in Brent CMHT;

1.2 In the Confidential Form A dated 6^th November 2011.

2 That your actions at 1.1 or 1.2 were dishonest in that you knowingly misrepresented the truth in relation to being dismissed by SEPT."

11. The two documents referred to in charge one provided as follows. Firstly the NHS application form in relation to "Employment History" identified a number of previous employers including SEPT. In the entry for SEPT the appellant completed the document as follows:

"Reason for leaving

Contract ended."

12. The Confidential Form A had as question 7 the following:

"7. Have you ever been dismissed by reason of misconduct from any employment, office or other position previously held by you?"

13. The appellant did not tick either the "yes" or "no" box under this question. Both the NHS application form and the Confidential Form A contained a declaration signed by the appellant that the information provided was true and complete. The CCC heard evidence called by the respondent from Devina Vencatasawmy. Within her evidence she explained that she had undertaken her own investigations and from that learnt that the appellant had been dismissed from his position with SEPT for gross misconduct. She contended that the use of the words "contract ended" within the application form were very ambiguous and that as a registered nurse she would have expected, in accordance with the Code of Conduct and the requirement to be open and honest, for the explanation of the reason for leaving to have been full and specific and further as an employer she would also expect openness and honesty in relation to an issue such as this (see transcript in the respondent's bundle, pages 17 and 18). She was cross-examined on behalf of the appellant and it was put to her that "contract ended" could mean a dismissal. The cross-examination proceeded:

"Q. but the reason for leaving, your evidence has been, hasn't it, that this is important to you as an employer.

A. Yes but it doesn't say he left because he was dismissed; it said he left because the contract ended. If it had said he was dismissed it would have been different to me."

14. Ms Vencatasawmy had put to her, and she accepted, that as a result of becoming aware of an investigation by the respondent she was also made aware at some point after 23^rd April 2012 of the appellant having been dismissed from SEPT. However she made clear, both in cross-examination and in answer to questions from the Panel, that she was not aware of the dismissal until she became aware of the referral to the respondent based upon it in April 2012.
15. Part of the appellant's case in relation to charges one and two was that he had disclosed that he had been dismissed from SEPT in a pre-employment meeting with CNWL's employee Oscar Gicheru. Mr Gicheru gave evidence and explained that part of his job included reviewing application documentation including the Confidential Form A. Had he noticed that question seven had not been completed he would have included that in his discussions with the appellant. In his evidence he was absolutely certain that the appellant had not informed him that he had been dismissed from a previous employment with SEPT. He was challenged in relation to this, and in particular the question of how he could be sure that the appellant had not disclosed the previous dismissal to him. The transcript records a passage of his cross-examination as follows:

Q. Do you recall that he had worked elsewhere on fixed term contracts?

A. I can't recall where his actual employment was at this moment in time because it was a number of years.

Q. And if, due to the passage of time, you can't remember that, is it possible that you wouldn't remember a conversation about why he left one of those employers?

A. You could say it's possible, however, at the time of speaking about this, there are specific reasons which I have retaliated [sic] of why for me the conversation I can be very certain that that conversation has not taken place. I can only talk obviously for myself. In terms of do I remember every single thing on someone's application form, no, however, when I have specific conversations, especially with Mark, I remember a number of conversations over the months that I was involved in his process.

Q. We don't need to go into those details, but in context, the Registrant's dismissal and the reasons for those, that dismissal, is quite innocuous compared to your role in screening out and finding out whether the potential applicant is suitable for this purpose. Would you accept that that – that dismissal is quite innocuous? If you've had – if you can try and recall that conversation, it's difficult to remember, isn't it because it's –

A. Like I've mentioned, I know you keep saying its difficult to remember. That's your opinion. I'm giving you my opinion on the question that you're asking me. Now, for me as a recruitment – working in there, there are a number of key things that I will be listening out for and wanting to discuss if they are raised. I've already pointed out that obviously there was an oversight by myself on question 7, and in terms of the conversations, I can give you the general conversations that myself and Mark had. I can be very certain that the conversation that you're saying to me would be difficult to remember would not be a difficult conversation for me to remember because it would be the key piece of information that would be required as part of that pre-employment check.

Q. Well, do you recall him saying something along the lines of that it was – he has been unfairly dismissed?

A. No. I can be 100 per cent certain of that."

16. It appears from the transcript that after the evidence of Mr Gicheru had been completed the appellant drew his counsel's attention to an email which he had found on his phone. The email was dated 5^th December 2011. The email recorded the conditional offer of employment to the appellant subject to "a series of satisfactory pre-employment checks" and scheduled an appointment for 6^th December 2011. Attached to it were a number of forms including the confidential form A. Mr Gicheru was then cross-examined about this email in the context of his earlier answers about having only had one meeting with the appellant and also in respect of his record keeping. He replied as follows:

"A. It's a standard letter, so like I mentioned before – what you've mentioned is this, the initial – it can't be the initial email. This is obviously as – because when my initial, or like I said about the two weeks, I've made my appointment. He hasn't been able to make that appointment. I think your – Mark has pointed out to you that he'd already received the exact same email because the date given on the actual declaration form which is once again attached on there, he signed that on 6 November, which would have been as part of when I initially asked him to come in. He's obviously delayed and I've re-sent him the exact same email with a different date.

Q. You say obviously. It's not obvious, is it? It's obvious that you've sent confidential form A before this because he's filled it out in November.

A. You've just shown one email. What you haven't done is actually shown the initial email in which he got this and confirmed. You've questioned my record keeping even though that wasn't actually put in front of me –

Q. Well, Mr Gicheru, have you been asked by the NMC to produce all the emails that you've sent to –

A. I was not asked, no. But you're asking me about the meeting, which I can answer directly according to the Panel. I only had one meeting with him."

17. In addition to the appellant's challenge to the evidence of Ms Vecatasawmy and Mr Gicheru he also contended that he was under considerable stress and difficulty in his personal life at the time when the representations, which were the subject of the charges, were made. His son was seriously ill, he was at the time ten years old and suffering from leukaemia and brain injury. Alongside the significant distress which his son's illness was causing him he also faced the breakdown of his marriage. He contended that the tremendous stress which these continuing events placed him under were also relevant to, and explained, the way in which the documentation had been completed. He contended that in the light of the extreme difficulties in his personal life it was inappropriate to conclude that he had behaved dishonestly.
18. The Panel were provided with advice as to the definition of dishonesty for the purposes of this and the other charges which the appellant faced and to which this judgment will turn in due course. The advice was provided by their independent legal assessor in the following terms.

"It is alleged that the Registrant acted dishonesty (sic). Dishonesty is a word that bears its ordinary meaning, which is well known and understood by all. If something that was allegedly done by the Registrant was dishonest, there are two questions that arise. The first – was what was done dishonest by the ordinary standard of reasonable and honest persons? In this regard, the Panel must form its own judgment of what these standards are. Second, must the Registrant have realized at the time what he did was dishonest by those standards? In deciding this, the Panel must consider his state of mind at the time. Only if the Panel is satisfied that the answers to both of these questions is in the affirmative is dishonesty proved. It is of course for the NMC to prove that the Registrant acted dishonestly."

19. The CCC's decision on their findings of fact was prefaced by an appraisal of the witnesses who they had heard on all of the charges before them in the following terms.

"The panel found all the NMC witnesses to be credible, honest and measured. Their evidence to be generally clear, reliable and consistent with contemporaneous evidence. They did not embellish their evidence to your disadvantage. The panel found you to be a very articulate witness. However, at times, it found your evidence evasive. When recounting incidents and faced with documentary evidence, your recollections appeared selective. It also found that on occasions, your evidence did not fully address the questions put to you. It therefore found significant parts of your evidence unreliable as you did not always provide straight answers to questions asked by the NMC or by the panel and there were inconsistencies in your answers. Further, in your evidence you disputed paragraph 4 of Mr 7's [Mr Allen's] written statement, which had previously been agreed between the parties and as a result of which he was not called to give evidence. The panel therefore determined that when inconsistencies of evidence occurred, it preferred the evidence of the NMC witnesses to yours."

20. They then reached conclusions in relation to charges 1, 1.1 and 2 in the following terms.

"…

That you, a Registered Nurse:

1. In or around October 2011, failed to disclose to Central North West London NHS Foundation Trust that you had been dismissed by your previous employer South Essex Partnerships NHS Foundation Trust (SEPT):

1.1 In your NHS Application form for employment as a BAND 6 Community Mental Health Nurse in the Community Recovery Team in Brent CMHT; FOUND PROVED

When completing the NHS Application form for employment at CNWL, the reason you gave for leaving your employment with SEPT, was "contract ended". You did not disclose that you had been dismissed by your previous employer SEPT.

The form further provided that additional information regarding your employment history should be included. No such information was included.

There was a declaration made by you at the back of this form. The declaration required you to confirm that the information provided by you was "true and complete" and that any omission, falsification or misrepresentation in the application form will be grounds for rejecting it or subsequent dismissal.

In your evidence, you said that you believed the phrase "contract ended" was a correct description but you agreed that it could have caused confusion. You further said that you were experiencing significant personal difficulties at the time of completing this form. The panel rejected this account as the form was otherwise fully and accurately completed save for your crucial failure to disclose your disciplinary issues.

The panel concluded that as a registered nurse, you were under a duty to disclose on the application form the full reasons for the end of your employment at SEPT and your dismissal on the application form. The onus was on you to make the reasons clear. The panel was satisfied that you failed to disclose your dismissal and therefore found this charge proved.

1.2 In the Confidential Form A dated 6^th November 2011.

FOUND PROVED

Confidential Form A, dated 6^th November 2011 was a separate document to your NHS Application form and was completed on a different date. Again you did not disclose reasons for leaving your previous employer SEPT. When completing Question 7 of the form: "Have you ever been dismissed by reason of misconduct from any employment, office of other position previously held by you", you left the box un-ticked. Further, there was space underneath that question to provide any details of a dismissal.

This document required you to sign a declaration about the truthfulness and completeness of the form and you have clearly signed your agreement to this. The panel therefore found this charge proved.

Charge 2

2. That your actions at 1.1 and/or 1.2 were dishonest in that you knowingly misrepresented the truth in relation to being dismissed by SEPT.

FOUND PROVED

The panel applied the twofold test to the question of dishonesty. First whether, according to the ordinary standards of reasonable and honest nurses, your actions were dishonest. Second, if that was so, whether you must have realised that what you were doing was by those standards dishonest.

In his evidence Mr 2 said that there was a pre-employment meeting on 6 December 2011 in order to gather information, for example of your eligibility to work in the UK. Your evidence was that in the course of the meeting you told him about your dismissal from SEPT. He said that at no time did you mention this. The panel preferred Mr 2's evidence as such information would be regarded by him as significant.

The panel also heard from Ms 1 about the importance of CNWL being aware of previous disciplinary matters. She was clear that the onus was on the registrant and that the words "contract ended" failed to tell the Trust what it needed to know.

The panel determined that by the ordinary standards of reasonable and honest nurses your actions were dishonest. Objectively, it is dishonest for a person who has completed two separate forms on two separate occasions asking about previous disciplinary action not to say so. Moreover you were experienced in completing application forms and you ought to have known that you should truthfully and accurately complete forms.

The panel decided that as a registered nurse you would have been aware of the significance of the information you were withholding.

In your evidence you said that you were experiencing personal difficulties at the time of completing these forms and as a consequence you made mistakes. The panel rejected this account as credible as both forms were otherwise complete and accurate and the only omissions related to your dismissal from SEPT. Further, both forms were completed on separate dates and the omissions related to the same matter, namely your previous dismissal from SEPT. The panel was therefore satisfied that you failed to inform CNWL on two separate forms and signed them to confirm that the information was true and accurate. This was untrue. The panel is satisfied that you must have realised that what you were doing was dishonest. The panel therefore found this charge proved."

21. As set out above the appellant's contentions are that the conclusions of the Panel were not substantiated by the evidence and that the actual findings which the Panel made were in error. Furthermore, he contends that the CCC were misdirected in relation to the question of dishonesty and in particular were not provided with a direction which properly addressed the requirements of the test as formulated in R v Ghosh [1982] 3 WLR 110.
22. These are submissions which I am quite unable to accept. Whilst it is open to the appellant in the context of a review of this kind to seek to challenge the factual conclusions which the Panel reached, as set out above, the first difficulty which the appellant faces in this case is that the findings which were reached followed the testing of the evidence through cross-examination and by a tribunal which had the benefit of hearing and observing the witnesses. It can be seen from their reasons that generally, and overall, they preferred the witnesses of the respondent and gave reasons why they were unable to find significant parts of the appellant's evidence reliable as the appellant failed to provide straight answers to the questions, was evasive and had selective recollection. Having reviewed the transcripts in my view there was nothing unfair in these observations in relation to the appellant's evidence. Dealing specifically with charges 1 and 2, the evidence of Ms Vencatasawmy and Mr Gicheru was clear, and consistent with contemporaneous evidence. There is no documentation which undermines the respondent's witnesses in respect of charges one and two and I am satisfied that the conclusions reached in relation to those charges is lawful. Dealing firstly with charges 1.1 and 1.2 the documentary evidence which has been set out above was directly supportive of the respondent's case. The CCC were perfectly entitled to conclude that the phrase "contract ended" did not involve any disclosure of the appellant's previous dismissal by his previous employer SEPT. They were entitled to conclude that he was under a duty to disclose the full reasons for the termination of his employment at SEPT and that the personal difficulties which he had at the time were not any form of adequate explanation in the circumstance that the remainder of the form had been fully and accurately completed. For similar reasons Confidential Form A also failed to disclose in answer to a direct question that the appellant had previously been dismissed by reason of misconduct from an earlier employment. Both of these documents required the appellant to sign a declaration that the information which he had provided was true and complete. He signed that declaration in circumstances where he had clearly failed to disclose his dismissal from SEPT by reason of misconduct.
23. Although the appellant sought to rely upon his disclosure in April 2012 in the context of a referral to the respondent following on from his dismissal from SEPT, as Ms Dutt pointed out in her submissions that is of no avail to the appellant. The charge related to what occurred in or around October 2011 or, in the case of charge 1.2 on 6^th November 2011. Whatever was disclosed in April 2012 would not have assisted the appellant in relation to these charges. Whilst there was a clear conflict of interest between the appellant and Mr Gicheru the CCC were perfectly entitled to prefer the evidence of Mr Gicheru who was clear and consistent in relation to his recollection that the appellant had not disclosed his dismissal from his former employment for misconduct at the pre-employment interview. Mr Gicheru gave a convincing reason for his evidence, namely that this issue would have been of such significance that he would have been bound to recall if it had been raised with him. Whilst he accepted that he had made an error in failing to note that the answer to question 7 had not been completed, nevertheless the matter was of such significance that had it been volunteered by the appellant he would have recalled it. In my view that was a convincing answer which the CCC were quite entitled to rely upon in rejecting the appellant's evidence in this respect. Thus I am satisfied that the conclusions in relation to charges 1.1 and 1.2 are robust and having reviewed them would conclude that they properly flow from the evidence which was before the CCC. Indeed, albeit not as well equipped as the CCC having not heard the witnesses, on the basis of my review of the transcripts and the documentary evidence, the CCC's conclusions are the ones which I would have reached myself. Thus there is no substance in relation to the appellant's complaints under charges 1.1 and 1.2.
24. Turning to charge 2, the Legal Assessors' Direction to the CCC in relation to dishonesty is set out above. Whilst the appellant complains that it does not follow directly that which is provided in the Crown Court Bench Book in my view it is not necessary for the direction to follow the example in that book verbatim provided that the direction given satisfactorily addresses the legal requirements in order for a tribunal to be satisfied of dishonesty. In my view the direction provided here is unimpeachable. It carefully addresses both limbs of the Ghosh test and there was no legal error in the direction provided.
25. Turning to the Panel's conclusions it is important to note that they are prefaced by an appropriate self-direction in relation to the question of dishonesty. In the light of the factual conclusions which the Panel had reached there was, in my view, ample evidence that the appellant had behaved dishonestly in his failure to make a frank disclosure of his dismissal from SEPT either in the NHS application form or the Confidential Form A. As the Panel put the matter succinctly "it is dishonest for a person who has completed two separate forms on two separate occasions asking about previous disciplinary action, not to say so". Furthermore, they were entitled to conclude that as a registered nurse the appellant would have been aware of the importance of making this disclosure. Again, their conclusions about the personal difficulties under which the appellant was labouring at the material time not providing a credible explanation for his dishonesty are robust. In all other respects the NHS application form and the Confidential Form A had been satisfactorily completed. The omission of a full disclosure of the appellant's previous dismissal for misconduct from SEPT on either form is conspicuous and telling evidence that the failure to disclose was not as a consequence of mistake. The declarations which were signed were, as the Panel were entitled to conclude, untrue and thus they were justified in being satisfied that the appellant must have realised that what he was doing was dishonest. For all these reasons, having reviewed the evidence and the Panel's conclusions, I am satisfied that the findings in relation to charge 2 are also fully justified. They are conclusions which I would have reached myself in the light of the material before me.

Charges 3 and 4

26. Charges 3 and 4 provided as follows:

"3. In or around June 2014, failed to disclose to the Sugarman Mind Agency that you were:

3.1 the subject of NMC proceedings and/or

3.2 that you had been dismissed by your previous employer SEPT and/or

3.3 that you have been previously dismissed by Central North West London NHS Foundation Trust

4. that your actions in charge 3 were dishonest in that you knowingly misrepresented the truth in each incidence so as to conceal information from potential employers."

27. It appears from the documentation that the appellant was dismissed from the employment of Central North West London NHS Foundation Trust ("CNWL") on 12^th October 2012. Part of the reason for his dismissal from the employment from CNWL was that it was found that he had deliberately omitted his employment with and dismissal from SEPT from his application for employment with CNWL. The dismissal was upheld at an internal appeal and the appellant withdrew a claim which he had made to the employment tribunal in relation to that dismissal.
28. It is recorded within the decision, and an undisputed fact within the proceedings, that on 19^th July 2013 and 16^th September 2013 the respondent wrote to the appellant to advise him of a fitness to practise referral. This referral progressed through the respondent's procedures into a formal Notice of Referral to their Investigating Committee on 27^th November 2013. By this date the CCC in their decision concluded that the appellant was undoubtedly aware of NMC proceedings against him.
29. On 2^nd June 2014 the appellant completed an application form for the Sugarman Group Ltd ("Sugarman"). That application form was accompanied by a warning in relation to the possibility of withdrawal of a temporary assignment if the form contained any "omissions or untrue, inaccurate or misleading information, either deliberate or accidental". Under a heading "Disciplinary" the form asked the following question:

"Have you ever been the subject of disciplinary action or undergoing disciplinary action?"

30. The appellant answered the box by ticking the "No" box on the form. At the end of the form the appellant signed a "Candidate Declaration" in which he confirmed that the information given in the application was, to the best of his knowledge, true and correct. It was the completion of this form in the manner described which led to charge 3.
31. The respondent called Declan Connor who was employed by Sugarman as a recruitment consultant to support charge 3. In his evidence Mr Connor referred to the question on the form in relation to disciplinary action and also referred to the fact that in the application form the appellant had cross referred to his CV where no reason for leaving SEPT was provided in the entry relevant to that employer. Mr Connor explained that his agency were reliant upon candidates to provide truthful responses to questions such as that posed in relation to disciplinary proceedings so that they could let their clients know, otherwise their agency would be "looked at in a bad light" (transcript page 167).
32. The appellant's response to the charge was firstly that he answered the question on the form on the basis of his genuine interpretation of what the question required. He interpreted the question as an enquiry as to whether or not at the time he was undergoing any disciplinary action and therefore ticking the "no" box was a genuine and honest answer to the question. If he had been confused about that it was as a result of English not being his first language and that led to him being confused in relation to what the question required. In any event he went on to contend that by virtue of an email which he had sent to Sugarman on 7^th August 2014 he had disclosed that he had been dismissed from his employment with SEPT in the following terms:

"However I feel it is important to provide a written agenda of an important disclosure. At the interview, and as per my CV, it was apparent that panel was aware of my previous work placement with the trust that ended in 2012. However, due to the precise and short nature of the actual interview for this Locum post, there was no opportunity to discuss the reason for leaving that contract – which ended by way of dismissal, culminating in a referral to the NMC.

Nevertheless I am unaware if the interview panel is privy to that information. However I feel it is particularly important to provide a written disclosure of the same, in order to, among other things, not to give impression that the apparent lack of disclosure at the interview was motivated by any attempt at misrepresentation and or dishonesty, other than by reasons as stated above."

33. Mr Connor in his evidence explained that he had not received that email. He advised the CCC in his evidence that he had checked through his emails dated from that period and confirmed that he not received the email in question. His evidence was that he had been forwarded that email after he had placed the appellant in a work placement by somebody who was working for the NMC. This had occurred after Sugarman had been informed by the representatives of CNWL (with whom the appellant had been placed) that he had previously been dismissed from CNWL. Mr Connor was cross-examined on behalf of the appellant in particular in relation to the investigations which he had made in respect of whether or not he had received the email of 7^th August 2014 disclosing the information set out above. An extended adjournment of the hearing occurred during the course of which Mr Connor was invited to return to his office and to check his computer to see whether or not in fact he had received the email which the appellant said he had been sent on 7^th August 2014. He was also asked about phone records showing that calls had been made to Sugarman by the appellant. Having returned to the hearing after scrutinising his email records Mr Connor accepted that he had received at least one email from the appellant on 7^th August 2014. He was, however, adamant that he had not received the email containing the disclosure.
34. The conclusions of the Panel in relation to charge 3 and its three sub charges were as follows:

"Charge 3

That you, a Registered Nurse:

3 In or around June 2014, failed to disclose to the Sugarman Mind Agency that you were:

3.1. the subject of NMC proceedings;

FOUND PROVED…

In its letter dated 16 July 2013 and 16 September 2013 the NMC informed you of a fitness to practise referral in relation to these charges. The formal Notice of Referral to the Investigating Committee letter was sent to you on 27 November 2013. The panel had no doubt that in or around June 2014, you were aware that you were subject of NMC proceedings.

On 2 June 2014 you submitted an application form to the Sugarman Agency You did not state either on the form or the accompanying CV that you were the subject of NMC proceedings. The panel therefore found this charge proved.

3.2. That you had been dismissed by your previous employer SEPT;

FOUND PROVED

In your application form to the Sugarman Agency, dated 2 June 2014, a question asked: Have you ever been the subject of disciplinary action or undergoing disciplinary action? You ticked "No".

Your CV sent to the Sugarman Agency made no mention of your dismissal from SEPT. Further, you signed a declaration that the information provided was to the best of your knowledge, true and correct.

Your e-mail to Mr 5 [Mr Connor], dated 7 August 2014 is of no relevance as this charge relates to June 2014.

The panel was satisfied that there is no evidence that you made the necessary disclosures to the Sugarman Agency in June 2014. It therefore found this charge proved.

3.3. That you had been previously dismissed by Central North West London NHS Foundation Trust

FOUND PROVED

In your application form to the Sugarman Agency, dated 2 June 2014, a question asked: Have you ever been the subject of disciplinary action or undergoing disciplinary action? You ticked "No".

You stated that you understood this question to mean "Are you currently undergoing disciplinary action?" and you therefore ticked "No".

In his evidence, Mr 5 said that you did not tell him about the NMC investigation or about your dismissal from CNWL. The panel preferred his evidence to your evidence.

You CV sent to the Sugarman Agency made no mention of your reasons for leaving CNWL.

Your e-mail to Mr 5, dated 7 August 2014 was of no relevance as the charge relates to June 2014.

The panel was satisfied that there is no evidence that you made the necessary disclosures to the Sugarman Agency in June 2014. It therefore found this charge proved."

35. In relation to charge four the Panel found as follows:

"4. That your actions at charge 3 were dishonest in that you knowingly misrepresented the truth in each instance so as to conceal information from potential employers.

FOUND PROVED

The panel applied the twofold test. It first determined whether by the ordinary standards of reasonable and honest nurses, your actions were dishonest. A nurse who does not disclose that he is subject to NMC proceedings and who, when asked whether he has ever been the subject of NMC proceedings and who, when asked whether he has ever been the subject of disciplinary actions, answers in the negative by ticking the "no box", is by these standards dishonest. The panel further considered that you were experienced in completing application forms and ought to have known that they should have to be fully and accurately completed.

The panel next considered whether you must have known that what you were doing was, by those standards, dishonest.

In your evidence you stated that your reason for ticking "No" was because, as a non-native English speaker, you understood this to mean "Are you currently undergoing disciplinary action?" and that this was correct as you were not undergoing disciplinary action at the time of completing the form. The panel found that your explanation lacked credibility. Although you asserted that you misunderstood the question you accepted that at no time did you seek clarification from the agency. Further, beneath the question, the form states "If yes, please give details" followed by a blank space. The panel determined that had you wished to give a more detailed or qualified answer you could have done so there.

In his evidence Mr 5 said that you did not tell him about the NMC investigation or about your dismissals from SEPT or CNWL. The panel preferred his evidence to yours.

Further you purported to rely on the fact that you are not a native speaker of English. You acknowledged, however, that your educational studies from GCSE level through to your advanced degree (Masters) at University in England were all conducted in English. The panel found your use of English to be to a very high standard and that you were very articulate.

The panel determined that the onus is on a registered nurse to disclose fitness to practise concerns to any potential employing agency. You said in evidence that you were well aware of the specific duty to make disclosures to employers under paragraph 51 of the Code. The panel was satisfied that as a registered nurse you would have been aware of the significance of the information you were withholding, as this would be regarded as significant by the agency and of relevance to the Trust. The panel has therefore concluded that you must have realised what you did was dishonest by the ordinary standards of reasonable and honest nurses and therefore found this charge proved."

36. I have reviewed the conclusions of the Panel in order to seek to identify whether or not there is any legal error in their conclusions or basis to contend that the factual findings which they reached should, following review, be quashed. Starting with the disclosure of the application form I am wholly unable to accept that the appellant did not properly grasp or understand what was being asked in relation to disciplinary action or, indeed, that that question was capable of more than one interpretation. It asks whether the candidate has ever been subject to disciplinary action or whether he is undergoing disciplinary action. It is in my view clear that this question was asking about the past as well as the present. Moreover, as the Panel concluded in relation to charge four, the appellant is in reality a very capable user of English having undertaken higher education studies in English. Further, like the Panel, the appellant impressed me at the hearing as a person who was articulate and capable of using English to a high standard. In my view, therefore, the Panel was correct in its conclusions that in or around June 2014 the appellant had failed to disclose the respondent's proceedings against him which by that stage were before the investigating committee; had failed to disclose his dismissal by SEPT; and had failed to disclose his dismissal by CNWL. It would be apparent from the formulation of the charge that reference to the email of 7^th August 2014 was, as the Panel concluded, of no relevance to charge 3. If it was a disclosure at all it was two months after the failure to make disclosure as part of the completion of the application form.
37. In any event the CCC were entitled to accept, if necessary, the evidence of Mr Connor that he had not in fact received that email at the time but only following the discovery of the fact that the appellant had been previously employed and dismissed by CNWL and as a result of it being forwarded on to him by the NMC. Thus the email of 7^th August 2014 was of no relevance to charge 3 as the Panel concluded. In my judgment it was in any event of limited value to the appellant in relation to charge 4. Quite apart from the fact that the CCC were entitled to prefer Mr Connor's evidence to that of the appellant it is, from the text of the email which has been set out above, still not disclosure of all the matters in issue. The text of the email pertains solely to his dismissal from one employer only and consequent referral to the respondent.
38. In respect of the conclusions reached by the Panel in relation to charge 4 I have already identified that the Panel were accurately directed in relation to the legal test for dishonesty, and they clearly applied that test in reaching the conclusion that the appellant was dishonest. I accept the validity of the reasons which they provided for reaching that conclusion. Firstly, as I have already set out above, the question posed on the application form was clear and in the appellant's case susceptible of only one answer namely "yes". Furthermore, additional space was provided in the form for him to provide disclosure. As the Panel noted, the respondent's Code: Standards of Conduct, Performance and Ethics for Nurses and Midwives ("The Code") required the appellant to "inform any employers you work for if your fitness to practise is called into question". The appellant accepted he was aware of this requirement and withholding the details of the NMC's disciplinary proceedings was in my view, in the circumstances, clearly dishonest and the appellant must have known that it was dishonest at the time of completing the form.
39. The email of 7^th August 2014 is of little avail to the appellant in respect of these matters. As the CCC concluded they were satisfied that Mr Connor was correct when he gave evidence that the appellant had not told him of the dismissals from SEPT and CNWL. That was a conclusion which firstly, in the light of the available evidence, they were entitled to reach and, secondly, on review, I would endorse. Mr Connor was fully cross-examined in relation to the question of whether or not the email had been received and availed himself the opportunity to check his computer records. He was satisfied that the email had not been received and that the first time it had come into his possession was when it had been forwarded to him by the NMC. Whilst the appellant relied upon records suggesting that the email had been sent, this was a dispute of fact which the CCC were entitled to resolve in Mr Connor's favour. Furthermore, whilst Mr Connor accepted following his further enquiry that he had received an email from the appellant on 7^th August 2014 that did not undermine his clear testimony that the email containing the disclosure had not been received by him.
40. The appellant, in relation to both charges 3 and 4, contends that on the basis that the application which he made to Sugarman was being investigated (and still in effect being processed for registration), the disclosure which he made on 7^th August 2014 rendered the CCC's conclusions on charges 3 and 4 unsound. That is a submission which I am unable to accept. Firstly, as pointed out above, the particulars in relation to charges 3 and 4 were specific to the forms dated 2^nd June 2014 which he completed. Thus the Panel were entitled to conclude that in effect the email of 7^th August 2014 could not be relevant to charge 3. It is arguable that it could have assisted the appellant in relation to the finding of dishonesty under charge 4 on the basis that his application had not been resolved, and he had sought to correct the earlier misrepresentation, but for the reasons which have been set out above the CCC were entitled to conclude that the email was not received by Mr Connor in any event. For all of these reasons I am satisfied that there is no basis upon which the appellant's appeal could be allowed in relation to charges 3 and 4.

Charges 5 and 6

41. Charges 5 and 6 provided as follows:

"in or around August 2014, failed to disclose to Central North West London NHS Foundation that you were:

5.1 The subject of NMC proceedings; and/or

5.2 that you had been dismissed by your previous employer, SEPT; and/or

5.3 that you have been previously dismissed by Central North West London NHS Foundation Trust

6. that your actions in charge five were dishonest in that you knowingly misrepresented the truth in each instance so as to conceal information from your potential employer."

42. These charges were based upon the evidence of Kathryn Frain. She gave evidence that she was employed as a Senior Human Resources Business Partner at CNWL and that she had provided human resources advice in relation to the disciplinary hearing at which the appellant was dismissed from the employment of CNWL in 2012. As set out above the appellant was placed with CNWL in August 2015. Ms Frain stated that this was following an agency booking from Sugarman. The position had been booked following the receipt of the appellant's CV and his interview by a panel of two clinical members of CNWL staff. Ms Frain discovered by chance on 8^th October 2014, when she was copied into an email about a meeting, that the appellant was at that time being employed by CNWL. She then raised enquiries with Mr Connor who told her that he was unaware either of the appellant's dismissal from CNWL or the NMC proceedings consequent upon that. She then terminated the appellant's booking. In her evidence she advised that the interview with the panel would have afforded the appellant the opportunity to disclose any relevant information, which he needed to, to the clinical staff present.
43. The appellant's defence in relation to these charges was to rely upon his disclosure to the Sugarman agency of both his dismissal from CNWL and also the NMC proceedings in the email dated 7^th August 2014. When she was cross-examined Ms Frain accepted that there was a duty on the agency to notify CNWL of any matters disclosed by a candidate in relation to issues of the kind in question. That responsibility she accepted was set out in the contract with the agency, and she explained that it was around 8^th October 2014 (either that day or the day after) when she was forwarded the email of 7^th August 2014 by Mr Connor.
44. The conclusions which the Panel reached in relation to these charges were as follows:

"Charge 5

5. In or around August 2014, failed to disclose to Central North West London NHS Foundation that you were:

5.1 the subject of NMC proceedings;

FOUND PROVED

…

You had an opportunity to disclose the NMC proceedings during an interview with CNWL on 5 August 2014.

You have not disputed that no disclosure was made to CNWL about your NMC proceedings or previous dismissals. In your evidence you said that you had attempted to make a disclosure to the Sugarman Agency by email of 7 August 2014, but that you were not under any duty to inform CNWL as 'end user'. The panel found that you had an opportunity to disclose that information to CNWL at this stage. It determined that you had a duty to disclose that information to CNWL, in addition to disclosing this to the Sugarman Agency. The panel therefore found this charge proved.

5.2 That you had been dismissed by your previous employer, SEPT;

FOUND PROVED

The panel was satisfied that CNWL was your employer. The panel found that you therefore had a duty to disclose your previous dismissal from SEPT to CNWL in addition to disclosing it to the Westmeria Agency. The panel was satisfied that no such disclosure to CNWL was made in relation to your previous dismissals. Further, you have admitted that no such disclosure has occurred with CNWL. The panel therefore found this charge proved.

5.3 That you had been previously dismissed by Central North West London NHS Foundation Trust

FOUND PROVED

The panel found that you had a duty to disclose your previous dismissal from SEPT to CNWL. You have admitted that no such disclosure was made. The panel therefore found this charge proved

6 That your actions at charge 5 were dishonest in that you knowingly misrepresented the truth in each instance so as to conceal information from your potential employer.

FOUND PROVED

When applying the objective test for dishonesty, the panel determined that that as set out in the Nursing and Midwifery Council's The Code: Standards of conduct, performance and ethics for nurse and midwives ("the Code"), as a registered nurse you had a duty to be open and honest, a fundamental tenet of the profession.

In this context the panel found the evidence of Ms 3 to be significant. She stated, "We expect all staff to be open and honest…I think there is a duty on the registrant to disclose."

When applying the subjective test for dishonesty, the panel had regard to you evidence. You told the panel that having made a disclosure to the Sugarman Agency by email of 7 August 2014, you were not under any duty to inform CNWL as 'end user'. The panel did not accept this proposition; it has found that the duty is to disclose to both the agency and the Trust.

In your email dated 7 August 2014 to Sugarman Agency you stated: "… There was no opportunity to discuss the reason for leaving that contract-which ended by way of dismissal, culminating in a referral to the NMC…However I feel it is particularly important to provide a written disclosure of the same…"

In your evidence you said that you were well aware of the specific duty to make disclosures to agencies as employers under paragraph 51 of the Code. The panel is satisfied that you had an opportunity to disclose this information at your interview with the Trust.

The panel determined that the onus is on a registered nurse to disclose fitness to practise concerns to his employer. The panel was satisfied that you were aware of the significance of the information you were withholding from CNWL. The panel therefore determined that this was a selective omission. Taking all of the above into account, the panel has concluded that you must have realised that what you did was, by the objective standard, dishonest. The panel therefore found this charge proved."

45. The appellant contended in the context of this appeal that the Panel's conclusions were not satisfactorily founded upon the evidence. He relied upon his disclosure to Sugarman by email of 7^th August 2014 in the terms which are set out above. It can be noted that within that email as a result of the "precise and short nature of the actual interview" he had not had an opportunity to discuss the reason for leaving CNWL. He contended that the provision of this email to Sugarman ought to have been accepted and should have persuaded the Panel that in the light of the evidence it was Sugarman's duty then under the terms of their relationship with CNWL to disclose the matter to them as the "end user".
46. In my view the CCC's reasons for rejecting that contention are entirely well founded. As set out above paragraph 51 of the Code required the appellant, irrespective of the relationship between Sugarman and CNWL, to disclose to CNWL who were going to be using his services if his fitness to practise had been called into question. The CCC correctly concluded that the term "employer" in the Code applied not simply to the agency but also to CNWL since they had overall management responsibility for the appellant in his day to day practice and were in a position to dismiss him. Thus in relation to charge 5.1 the appellant was under an obligation at the interview which he held with the clinical staff to make the disclosure. In respect of charge 5.2 it was an undisputed fact that the appellant had not disclosed his previous dismissal from SEPT to CNWL and again this was a matter which ought to have been disclosed to them. He had the opportunity to do so at the time when he was interviewed by CNWL prior to his engagement. Similar considerations apply in relation to charge 5.3. There was the opportunity to make disclosure and the appellant did not take it. Thus in my view each of the conclusions in relation to charges 5.1 – 5.3 are unimpeachable.
47. Turning to charge 6, as set out above, I am satisfied that the CCC were provided with an adequate direction in law in relation to the definition of dishonesty and it is clear from their reasons that they applied this in reaching their conclusions. Having reviewed their conclusions I am satisfied that it was correct for them to conclude that the appellant was under a duty to be open and honest and that they were entitled to rely upon the evidence of Ms Frain in addition to the provisions of the Code. In my view it is beyond argument that the appellant had the opportunity to make the disclosures and, further, that it was necessary for those disclosures to be made to CNWL at the appellant's interview. The conclusion which the CCC reached that the failure to do so was a "selective omission" was legitimate. In the circumstances the Panel's finding of dishonesty in relation to these charges was entirely appropriate and having reviewed it I see no basis upon which the appeal could be allowed.

Charges 9, 10, 11 and 12

48. The CCC had concluded that there was no case to answer in relation to charges 7 and 8, therefore they formed no part of the appeal. The CCC found that charge 10.1 was not proved. Thus the remainder of the charges which the CCC had to determine were as follows:

"9. between 17^th July 2013 and 2^nd December 2014 failed to disclose to Westmeria Recruitment Ltd that you were:

9.1 the subject of NMC proceedings and/or

9.2 that you had been dismissed by your previous employer SEPT and/or

9.3 that you have been previously dismissed by Central North West London NHS Foundation Trust

10. between 17^th Jul 2013 and 26^th July 2013 failed to disclosed to Hammersmith and Fulham assessment team West London that you were:

10.2 that you had been dismissed by your previous employer SEPT and/ or

10.3 that you had been previously dismissed by Central North West London NHS Foundation Trust

11. between 14^th October 2013 and 13^th November 2014 failed to disclose to Cheam Recovery and Support team that you were:

11.1 the subject of NMC proceedings and/or

11.2 that you had been dismissed by your previous employer SEPT and/or

11.3 that you had been previously dismissed by Central North West London NHS Foundation Trust

12. that your actions at charges 9 and/or 10 and/or 11 were dishonest in that you knowingly misrepresented the truth in each instance so as to conceal information from potential employers."

49. The charges in charge 9 were principally based upon the evidence of Julie Wortans. She was an employee of Westmeria Recruitment Ltd ("Westmeria") and whilst she was not in post until May 2014 (and therefore relied upon Westmeria's documentation), from her understanding of their practices and procedures she provided the following evidence in relation to the appellant's engagement by her company. On 5^th June 2014 the appellant completed an application form to be taken on by Westmeria, who operate an agency placing nurses in employment. On that application the following question was posed:

"Have you ever been the subject of a professional misconduct proceeding, suspension from an employer or pending an enquiry either in the UK or abroad?"

50. The answer which the appellant provided to this was to tick "no". The application form contained with it a declaration that the appellant signed that the information was true and that he had "not omitted relevant details". There was a further declaration contained on the form which the appellant also signed indicating that the information he had given was true and accurate. Part of the documentation associated with the form was a proforma which required the appellant to provide details of the previous jobs which he had carried out in the last 10 years. The appellant left that form blank and wrote at the top of it "please see CV attached". The CV produced by Ms Wortans as having been attached to the application form detailed the appellant's previous employment but did not provide any reasons for the termination of that employment. There was no mention in the CV of his employment by CNWL. He was also required to complete what was entitled a "Self Declaration Form" upon which he ticked a box to state that he had provided a "CV with a ten year work history (explaining any gaps in employment)" he signed a declaration that he was not subject to any investigations into his fitness to work and a further declaration that the information which he had provided was true and complete to the best of his knowledge and belief. During the course of her evidence, both in chief and cross-examination Ms Wortans stated that every nurse who joined the agency received a copy of their Handbook. In the Handbook the following instructions were provided:

"You must inform the Westmeria if you are subject to any kind of investigation by their relevant Professional or Regulatory Body or are suspended from their relevant Professional or Regulatory bodies health professional's register."

51. When she was cross-examined Ms Wortans accepted that the Handbook was not signed for by applicants when they registered with the agency. Two key issues emerged from cross-examination in challenge to Ms Wortans' evidence. The first was that the appellant had in fact in October 2014 disclosed to Westmeria that he had been referred to the NMC and had an interim order hearing. This disclosure was said to have been made by an email on 23^rd October 2014. However, it emerged during the course of cross-examination that this email could not have arrived because the email address of the recipient at Westmeria had been incorrectly typed. This error explained to Ms Wortans why the email had not appeared within Westmeria's documentary records.
52. The second issue was the question of whether or not a completed ten year work history on the form provided by Westmeria had in fact been forwarded by the appellant to them. Unlike the document which referred to the CV that the appellant had attached, the document in this respect on which the appellant relied was one which had been completed in manuscript and which incorporated as a reason for leaving the termination of his appointments with SEPT and CNWL the fact that they had ended by way of dismissal. Ms Wortans stated that she had never received this document and relied upon its absence from Westmeria's documentary records. It was suggested in cross-examination to Ms Wortans that this document had been provided by the appellant to Westmeria. She said that she had never seen it before. In re-examination she was asked to confirm how a document such as the completed ten year employment history which it was suggested had been sent in would have been treated by Westmeria. She indicated that it would have been filed with the appellant's file. She was asked if such a document had been received by Westmeria what would have happened and she replied:

"Massive alarm bells would ring that somebody had been terminated twice, or dismissed twice, actually. Because it isn't that common – it is quite a rarity for nurses to apply to us who have actually been dismissed."

53. She went on to advise that anything concerning dismissal would have gone to Westmeria's governance department or the Director of Recruitment. The fact that Ms Wortans had not seen the completed ten year history was reiterated by her in answer to questions from the CCC. She agreed that it would have been possible for someone to be recruited without a ten year history having been seen on the basis of the information provided with their CV. She went on to reconfirm that she had submitted all the things which were relevant from Westmeria's file. She also observed that the completed version of the ten year employment history appeared to have been completed with a different type-face from that which Westmeria would normally use. She confirmed that whilst the blank document with the appellant's annotation in relation to the need to refer to his CV was present in Westmeria's file the completed ten year employment history was not. Ms Wortans produced her file for the parties' representatives to examine. She explained that it was not a correspondence file but that emails would be recorded on Westmeria's electronic system. When pressed in further cross-examination on behalf of the appellant in respect of her queries as to the type-face of the form, Ms Wortans went on to note that in addition the completed ten year employment history form had typographical errors in the text of the form itself, in that in the third box from the top the word "from" had been misspelt "form". She contended that her organisation would not have tolerated the issuing of a form with such a defect within it.
54. As will be apparent to some extent from the challenge to Ms Wortans' evidence, the contention of the appellant was that he had made full and proper disclosure to Westmeria at a number of meetings during the recruitment and registration process. He had made full disclosure of his previous employment history together with specific appropriate details for his reasons for leaving each employment. This had all occurred in June 2013 around the time when he had completed the application form. He said that he re-registered with Westmeria for a second time in October 2014 and it was during the course of this re-registration process that he sent the email which, as a result of a genuine error, did not arrive because he had misspelt the email address. He therefore disputed the basis of the allegations under charge 9, and contended that he had made the relevant disclosure between 17^th July 2013 and 2^nd December 2014 in respect of both of the NMC proceedings and also his prior dismissals from SEPT and CNWL. The Panel's conclusions in respect of the charges under charge 9 were as follows:

"Charge 9

That you whilst a registered nurse

9. Between 17 July 2013 and 2 Decmeber 2014, failed to disclose to Westmeria Recruitment Ltd that you were:

9.1 the subject of NMC proceedings;

FOUND PROVED

In a letter dated 17 July 2013 the NMC notified you that your fitness to practise had been called into question. The panel however did not consider that this letter gave rise to you being the subject to NMC proceedings.

The panel determined that you became the subject of the NMC proceedings when the NMC notified you of this by a formal Notice of Referral on 27 November 2013. You have accepted that you became the subject of NMC proceedings on this date.

You completed the Westmeria Agency application form on 5 June 2013. You were not at that stage subject to NMC proceedings and you were therefore not under an obligation to disclose this information on your application form.

The duty arose when you were notified of the referral by letter dated 27 November 2013. The duty to disclose continued thereafter during the period 27 November 2013 to 2 December 2014. The panel therefore found this charge proved in that between 27 November 2013 and 2 December 2014 you failed to make the necessary disclosure.

9.2 That you had been dismissed by your previous employer, SEPT;

FOUND PROVED

In your Westeria application form dated 5 June 2014 there was a question "Have you ever been the subject of a professional misconduct proceeding, suspension from an employer or pending an enquiry either in the UK or abroad". In response you ticked "No". Further the application form required you to provide 10 years of work history and reasons for the gaps in your employment. You stated: "Please see CV attached." Your attached CV did not refer to your dismissal from SEPT.

Furthermore you signed the declaration at the back of the form: "I declare that the information given is true and is not in any way intended to mislead. I am not aware of any condition medical or otherwise, that would affect or limit my performance or employment…I agree that I have given correct information and have not omitted relevant details…" This was clearly untrue. The panel therefore found this charge proved.

9.3 That you had been previously dismissed by Central North West London NHS Foundation Trust

FOUND PROVED

In your application form you responded to the question: "Have you ever been the subject of a professional misconduct proceeding, suspension from an employer or pending an enquiry either in the UK or abroad", by ticking "No". Further the application form required you to provide 10 years of work history and reasons for the gaps in your employment. You stated "Please see CV attached". Your attached CV did not refer to your previous dismissal from CNWL. Indeed no reasons were given for your change of employment.

Furthermore you signed the declaration at the back of the form: "I declare that the information given is true and is not in any way intended to mislead. I am not aware of any condition medical or otherwise, that would affect or limit my performance or employment…I agree that I have given correct information and have not omitted relevant details…" This was clearly untrue. The panel therefore found this charge proved."

55. I have reviewed the findings of the CCC and am satisfied that they are sound. I cannot see any error of law or any basis for concluding that the factual findings which they reached were in any way inappropriate. So far as charge 9.1 is concerned, as the CCC pointed out, once the referral to the investigating committee had been notified to the appellant on 27^th November 2013 he was under a clear duty to disclose those proceedings. That arose whether or not he had received the Handbook, although it is clear from the Panel's overall conclusions as to the reliability of the witnesses, that they accepted the evidence that he would have been provided with it. The duty to disclose arose, however, from the Code in any event and it was in effect uncontested that the appellant had failed to make the disclosure. As set out above, the email dated 23^rd October 2014 was sent to an incorrect email address and therefore is of no avail to the appellant.
56. The conclusions in relation to charges 9.2 and 9.3 are in my view equally sound. As the CCC pointed out, the application form which was completed by the appellant asked the appellant directly whether or not he had been the subject of a professional misconduct proceeding or suspension from his employment. The answer which he provided in response to that clear and direct question was obviously untrue. Moreover, the CV which he provided in lieu of a ten year work history made no reference to his dismissal from either SEPT or CNWL and (whilst the Panel's identification of an incorrect date under charge 9.2 is clearly typographical only) the Panel clearly preferred the evidence of Ms Wortans in relation to the question of whether or not the appellant had in fact provided a completed ten year work history in the form which was submitted to the hearing. The acceptance of Ms Wortans' evidence on this point is made expressly in the Panel's reasons in respect of charge 12. Having reviewed the evidence in relation to that completed application form in my view the CCC were correct to place no reliance upon it. The evidence from Ms Wortans as to the type-face and the spelling error on the form which the appellant completed and asserted he had submitted are in my view obvious from the documents and support the view that this was not a document submitted at the time of his original application and in response to documentation sent to him in June 2013. Thus I am entirely satisfied that the findings in relation to charges 9.1 to 9.3 were sound.
57. The charges under charge 10 that are the subject of the appeal were as follows:

"10. Between 17^th July 2013 and 26^th July 2013 failed to disclose to Hammersmith and Fulham assessment team West London that you were:

10.2 that you had been dismissed by your previous employer SEPT and/or

10.3 that you had been previously dismissed by Central North West London NHS Foundation Trust."

58. Charge 10 was supported by the evidence of Siobhan Jugessur. Her evidence was read to the hearing on the basis that it was agreed. Within her witness statement she states that whilst she was working for Hammersmith and Fulham assessment team West London there was a vacancy which it was decided would be filled by a locum. She, together with other staff, were sent CVs of available nurses by Westmeria and the appellant was interviewed. No questions were raised as to whether or not the appellant was under investigation by the NMC, nor did the appellant mention that. The appellant was engaged and his first shift was 9^th July 2013. Following discussions about his level of performance on 26^th July 2013 he undertook his last shift and did not return to work.
59. As set out above this evidence was not challenged. The appellant relied upon his disclosure to Westmeria in respect of his dismissal from SEPT and CNWL. The Panel's conclusions in relation to these charges were as follows:

"10. Between 17 July 2013 and 26 July 2013 failed to disclose to Hammersmith and Fulham assessment team West London that you were:

…

10.2 That you had been dismissed by your previous employer, SEPT;

FOUND PROVED

For the identical reasons given under Charge 5 above the panel was satisfied that Hammersmith and Fulham Assessment Team West London was your employer. The panel therefore found that you had a duty to make disclosures to the Trust about your dismissal from SEPT. Your CV supplied to the agency did not mention your previous dismissals.

It was your case that you did not believe that you had to make separate disclosure to the Trust as you regarded Westmeria Agency as "your employer". You said that you believed that you had made disclosure to Westmeria but by mistake had misspelt the e-mail address. The panel has therefore concluded that no disclosure was made to Westmeria Agency and that in any event the agency could not have passed the information to the Trust.

The panel was therefore satisfied that no disclosure has been made to this Trust and therefore found this charge proved.

10.3 That you had been previously dismissed by Central North West London NHS Foundation Trust

FOUND PROVED

For the identical reasons given under Charge 5 above the panel was satisfied that Hammersmith and Fulham Assessment Team West London was your employer. The panel therefore found that you had a duty to make disclosures to the Trust about your dismissal from CNWL.

The panel was satisfied that no disclosure has been made to this Trust and therefore found this charge proved."

60. For the reasons which have been set out above I am satisfied having reviewed the evidence that the CCC were correct to conclude that no disclosure had been made to Westmeria of the appellant's dismissal from SEPT and CNWL. Thus for similar reasons they were entitled to conclude, as they did, that there had been no disclosure of these dismissals to Hammersmith and Fulham assessment team West London. Furthermore, I am satisfied that the Panel were correct to conclude that for the purposes of disclosure of matters such as dismissals for misconduct from previous employment Hammersmith and Fulham assessment team West London were the appellant's employer, and therefore there was a duty to make disclosures about these dismissals to them, as well as the agency by whom the appellant had been placed. Therefore, having reviewed the findings and conclusions of the CCC, I am satisfied that the factual findings were appropriate and based upon the available evidence. Indeed, in relation to these charges, it was not contended by the appellant that he had made disclosure to Hammersmith and Fulham assessment team West London.
61. Charge 11 was also founded on evidence which was agreed by the appellant by presentation as part of the respondent's case to the hearing. The agreed evidence came in the form of a witness statement from Chris Allen who was employed by Cheam Recovery and Support Team as a team manager. He had selected the appellant from a list of CVs provided by Westmeria. He explained in his statement that his organisation would have expected Westmeria to have done all of the background checks in relation to the appellant's PIN with the respondent, employment history and qualifications. He stated that Westmeria had said that there were gaps on the appellant's CV but that those were going to be corrected. Paragraph 4 of Mr Allen's statement provided as follows:

"4. On 13/11/14, following a supervision session, Mark told me he had to attend a meeting of some sort involving the NMC and may need 16-18^th December off because of this. I cannot exactly recall if he referred to it as a 'hearing' – I asked for more details but he said something like it was nothing to worry about and concerned an issue from the past. We were both busy following that but I had meant to investigate this further, but didn't due to annual leave and the registrant's resignation."

62. The statement set out that the appellant's first shift was on 16^th October 2014 and that the last shift he worked was on 17^th November 2014. The appellant resigned from the post on 2^nd December 2014.
63. Although Mr Allen's statement had been read as agreed when the appellant came to be cross-examined in greater detail about it he sought to dispute the contents of the statement. It appears that the appellant's contention was that the statement was incomplete in relation to the extent of the disclosure which he had made to Mr Allen during the course of their discussions. The commencement of the appellant's disagreement with the statement of Mr Allen was in his evidence in chief (see page 262 of the transcript in the respondent's bundle) where he stated that he did not recollect saying anything like "its nothing to worry about, a certain issue from the past". In cross-examination his disagreement with Mr Allen's statement was elaborated (see the transcript in the respondent's bundle page 368-370) and the appellant disagreed with the contents of Mr Allen's statement as being incomplete in relation to the disclosure which had been made. The Panel's conclusions in relation to charge 11 were as follows:

"…

11. Between 14 October 2014 and 13 November 2014 failed to disclose to Cheam Recovery and Support Team that you were:

1.1 the subject of NMC proceedings;

FOUND PROVED

For the identical reasons given under Charge 5 above the panel was satisfied that Cheam Recovery and Support Team was your employer. The panel therefore found that you had a duty to make disclosures to Cheam about your NMC proceedings. Your CV supplied to the Westmeria Agency did not mention that you were subject to NMC proceedings.

The panel has already been found that you became subject of NMC proceedings on 27 November 2013.

In his witness statement, read to the panel, Mr 7 said that you told him that you were to meet with the NMC and you… "said something like it was nothing to worry about and concerned an issue from the past".

You had agreed the content of Mr 7's evidence, but in your evidence you disputed that part of his statement and you said that you had told him of the NMC proceedings. Mr 7's evidence, having been agreed and read to the panel, cannot now be tested before the panel.

The panel did not accept your account of this conversation and found that what you said to Mr 7 was inaccurate, incomplete and did not amount to disclosure that you were subject to NMC proceedings.

The panel was satisfied that no disclosure had been made to this Trust and therefore found this charge proved

11.2 That you had been dismissed by your previous employer, SEPT;

FOUND PROVED

For the identical reasons given under Charge 5 above the panel was satisfied that Cheam Recovery and Support Team was your employer. The panel therefore found that you had a duty to make disclosures to Cheam about your dismissal from SEPT. Your CV supplied to the agency did not mention your dismissal from SEPT.

The panel was satisfied that no disclosure has been made to Cheam about your previous dismissal from SEPT and therefore found this charge proved

11.3 That you had been previously dismissed by Central North West London NHS Foundation Trust

FOUND PROVED

For the identical reasons given under Charge 5 above the panel was satisfied that Cheam Recovery and Support Team was your employer. The panel therefore found that you had a duty to make disclosures to Cheam about your dismissal from CNWL. Your CV supplied to the agency did not mention your dismissal from CNWL.

The panel was satisfied that no disclosure has been made to Cheam about your previous dismissal from CNWL and therefore found this charge proved."

64. In his submissions to the appeal the appellant again relied upon the disclosure of these matters to his agency Westmeria. He further contended, as he had through his oral evidence at the hearing, that Mr Allen's statement did not capture the full details of the disclosures which he had made to him. On this basis he contended that the findings of the CCC were unsound and unlawful.
65. Having reviewed the evidence and the conclusions which the CCC reached I am entirely satisfied that the findings in respect of these charges were sound and robust. For the reasons which have already been set out and which were reiterated by the CCC the appellant could not rely upon disclosures to Westmeria as a defence to these charges either in principle or in substance. In principle, Cheam Recovery and Support Team was his employer and therefore the duty to disclose both the NMC proceedings and his earlier dismissals was owed to them, just as much as it was owed to Westmeria. As the Panel had already found, these disclosures had not been made to Westmeria in any event. For the reasons which I have set out above their conclusions in that respect were entirely sound. I am unable to accept the appellant's submission that the Panel was wrong to conclude that Mr Allen's evidence was a reliable basis for decision making. Having reviewed the transcript recording the appellant's challenge to this statement, and the cross-examination of him, in my view his evidence was wholly unconvincing. The CCC had the advantage of hearing this oral testimony directly and forming their own impression of the appellant and I can find nothing in the transcript or the documentation which suggests that their appraisal of the evidence was in any way in error. The CCC were entitled to rely upon the fact that, with the advice of counsel, the appellant had agreed that Mr Allen's statement could be read as uncontroversial. Further, it was in my view a telling factor in relation to the appellant's credibility that, notwithstanding this agreement, when he came to give his evidence he sought to challenge the statement that had previously been agreed. It follows that I am entirely satisfied that there is no legitimate basis upon which the findings of the CCC in relation to these charges could be impugned in this appeal.
66. Having reached the findings which they did in relation to charges 9, 10 and 11 the Panel went on to consider whether these failures were dishonest under charge 12. This was hotly contested by the appellant on the basis that he contended he had made the disclosures and moreover had acted honestly throughout. The Panel reached the following conclusions in relation to the question of dishonesty and incorporated within them a number of findings of fact in relation to the disputed evidence which has been rehearsed above. Their conclusions were as follows:

"12. That your actions at charges 9 and/or 10 and/or 11 were dishonest in that you knowingly misrepresented the truth in each instance so as to conceal information from potential employers.

FOUND PROVED

When considering whether your actions in relation to charges 9, 10 and 11 were dishonest, the panel has applied the twofold test to each charge.

When applying the objective test for dishonesty, the panel determined that as set out in the Nursing and Midwifery Council's The Code: Standards of conduct, performance and ethics for nurses and midwives ("the Code"), as a registered nurse you had a duty to be open and honest, a fundamental tenet of the profession.

In regard to Charge 9

The ten year history was a part of the application form and is already present in the application form that the registrant returned to the Agency. You had dealt with that form by writing on it "Please see CV attached". The panel found that you did not return the form fully completed.

You had not produced any email showing if or when the completed ten year history form was sent to the agency.

You stated that you sent to Westmeria Agency a further fully completed ten year history form disclosing details of your two dismissals. You produced this form in your evidence.

In her evidence Ms 4 [Ms Wortans] said that if the agency had received this version of the ten year work history produced, then: "Massive alarm bells would ring that somebody had been terminated twice, or dismissed twice, actually. Because it isn't that common – it is quite a rarity for nurses to apply to us who have actually been dismissed". She said that she had previously searched your file at the agency and could not see a completed ten year history anywhere. The file itself was checked during the hearing by both counsel and it was agreed that it does not contain a completed ten year history form.

Ms 4 further said that if the agency did become aware that a candidate was previously dismissed, it would act on that information by seeking references, obtaining a statement from the candidate and informing the end-user Trust in writing.

At the time of completing your Westmeria Application form on 5 June 2013, you were aware that you had been dismissed from two employers: SEPT and CNWL. In addition to the application form, your CV which the agency held on file made no mention of these matters nor of your NMC proceedings.

You told the panel that you believed you had made disclosure to Westmeria Agency by sending your completed ten year history by email, but by a mistake had misspelled the correct e-mail address. The panel has seen a chain of five separate e-mails between Westmeria Agency and you, which had been sent to the correct email address.

You completed the Westmeria application form thoroughly and accurately, save for the questions about any previous misconduct findings, and your omissions in relation to your disclosure of 10 years of work history. In addition, you signed a Declaration of Truth at the back of the form. The panel determined that the onus is on a registered nurse to disclose fitness to practise concerns to his employers.

The panel found your actions to be dishonest.

In regard to Charge 10

It was your case that you did not believe that you had to make separate disclosure to the Hammersmith and Fulham and Cheam as you believed that you only had to make disclosure to Westmeria as "your employer". The panel has however concluded that no disclosure was made to Westmeria Agency in any case and the agency could not have told the Trust. Further, your duty to disclose your previous dismissals to the Trust was in addition to that duty towards Westmeria Agency.

You gave evidence that you were well aware of the specific duty to make disclosures to agencies as employers under paragraph 51 of the Code.

The panel found your actions to be dishonest.

In regard to Charge 11

For the same reasons as in regard to Charge 10, the panel found your actions to be dishonest.

The panel determined that the onus is on a registered nurse to disclose fitness to practise concerns to his employer. The panel was satisfied that you were aware of the significance of the information you were withholding from Westmeria, Hammersmith and Fulham and Cheam. The panel determined that these were deliberate omissions. Taking all of the above into account, the panel found your actions to be subjectively dishonest. It has therefore found dishonesty proved in relation to all three charges both individually and cumulatively."

67. In his submissions to the appeal these findings of dishonesty were further contested by the appellant both in terms of the findings of fact that they contained, but also in terms of the Panel's interpretation that the appellant's behaviour amounted to dishonesty.
68. In my view once the Panel had reached the findings of fact, which I have supported, in relation to charges 9, 10 and 11, it was very clear that the appellant had behaved dishonestly in relation to each charge. In relation to Wetsmeria itself the appellant had clearly completed the application form in a manner which withheld his previous dismissals for misconduct notwithstanding the remainder of the form having been thoroughly and accurately completed. He failed to disclose the NMC proceedings at a time when he should have done so and in my view the Panel were perfectly entitled to conclude that his actions had been dishonest. These are conclusions which on the basis of the facts found I would support. Turning to charge 10 the appellant made no attempt to disclose these matters to Hammersmith and Fulham, notwithstanding that he was clearly under a duty to do so. This was a clear breach of the Code and I am satisfied that the Panel were correct to conclude that the appellant was dishonest in this connection as well. Similar conclusions arise in relation to charge 11. Again, no disclosure was made to Cheam Recovery and Support Team, who were for these purposes the appellant's employer, and the Panel were correct to interpret that failure to disclose as being dishonest. I am therefore entirely satisfied that there is no basis upon which to grant this appeal in respect of charge 12.

Fairness

69. As set out above in the appellant's original Grounds, and in his skeleton argument, the submissions in relation to fairness (which were not already encompassed in his challenges to the substantive Grounds set out above) were that "a witness was later turned into a panel member". At the hearing this Ground was not specifically pursued and indeed there is no evidence to suggest that, taken literally, this occurred. The contention which emerged during the course of the hearing related to an allegation of unfairness arising from the fact that the appellant had to participate in an interim order review hearing prior to completion of his evidence. In summary it was contended by the appellant that the requirement for him to participate in this hearing undermined his position at the final hearing in that it gave the respondent a preview of evidence which was to be given by him in the substantive hearing and required him to rehearse matters which were properly the subject matter of the final hearing.
70. The circumstances lying behind this allegation are as follows. The hearing of the substantive charges commenced on 9^th June 2015 and ran from 9^th–11^th June 2015, 23^rd-26^th June 2016 and then 7^th-8^th October 2015. The appellant's evidence commenced on 25^th June and had not been completed by the end of the hearing on 26^th June 2015. At that stage he was being cross-examined by the Case Presenter on behalf of the respondent. On 26^th June 2015 the date of 7^th October 2015 was fixed as the date for the resumed hearing, and the interim order in his case remained in place. Subsequently, the respondent sought a review or that interim order on the basis of further information which they contended justified the suspension of the appellant. The hearing for the interim order review was first convened on 27^th July 2015, following giving notice of it to the appellant on 17^th July 2015. At the outset of the hearing the appellant raised with the CCC, who were comprised in a Panel of different individuals from those who were conducting the substantive hearing, that he was concerned, firstly, that he had promised the substantive hearing that he would not discuss his evidence with anyone prior to the resumed hearing and that he might need to refer to that evidence in the context of the interim order review hearing and, secondly, that he had not had the opportunity to obtain legal advice and was concerned that his inability to discuss his evidence would imperil his opportunity to take legal advice. The CCC granted an adjournment of that hearing. The legal assessor's advice, which all accepted, was that it would be open to the appellant to discuss with his legal representation the merits of the interim order review application and to seek advice about it provided that there was no discussion of the evidence he was giving in the substantive hearing.
71. The interim order review hearing reconvened on 17^th August 2015 before a different Panel of the CCC. The appellant again reiterated his wish for the matter to be adjourned. He explained that he had been furnished at short notice with a substantial volume of documentation for the hearing and also that, having contacted his counsel, his counsel had emailed to explain that as the appellant was giving evidence in the substantive hearing he could not discuss his evidence with him. Having received legal advice the adjournment application was rejected. The appellant then gave evidence in relation to the disclosures which he had made to employers in compliance with the requirements of the interim order. The question of the allegations in the substantive hearing did not feature large in the evidence which the Panel received. References were provided to the Panel by the appellant supporting his honesty and professionalism. Certainly the allegations in the substantive hearing were relied upon by the respondent as part of the supporting evidence for the making of an interim suspension order. In the event the CCC were not satisfied that it was proportionate to impose an interim suspension order and the interim order was continued subject to the previous conditions.
72. When the substantive hearing resumed on 7^th October 2015 the appellant raised with the CCC, by way of a disclosure, that in the context of the interim order review hearing he had had to discuss part of his evidence which he was giving to the substantive hearing Panel in order to make his case in the review. He also questioned why he had been in effect required to go ahead and provide evidence to the review hearing when he was still on oath and had had to promise that he would not discuss his evidence at the substantive hearing. The CCC received advice from their Legal Assessor whose view was that the appellant had not infringed the requirements placed upon him as a result of his evidence being part heard at the substantive hearing by making reference to that evidence before the interim order's review hearing. He went on to further advise that it was very much in the favour of the appellant that he had taken it upon himself to disclose what had occurred. The Chair of the CCC Panel accepted this advice and proceeded to continue to hear the evidence of the appellant.
73. The circumstances which have been set out above do not, in my judgement, disclose any procedural irregularity or unfairness which has in any way adversely affected or prejudiced the appellant in the conduct of his case. It was no doubt entirely appropriate of the appellant to point out to the Panel hearing the interim order review that he was in the middle of his evidence before the substantive hearing, and also to point out at the resumption of the substantive hearing that he had had to discuss matters pertaining to his evidence at the substantive hearing when appearing before the Panel determining the interim order review. There is nothing disclosed in the transcript of the substantive hearing (and it is at that hearing that the appellant claims there was unfairness or procedural irregularity) which indicates either that at the time of that hearing the appellant complained of any unfairness or procedural impropriety, or that anything which may have occurred during the course of the interim review hearing in any way impinged upon a full and fair exploration of his factual evidence during the 7^th and 8^th October 2015. There is no realistic basis to contend that the respondent took any advantage, let alone any procedurally unfair advantage, as a consequence of the appellant participating in the interim review hearing. Matters which the appellant relied upon at the interim review hearing would have had to come to the attention of the respondent at some point in any event were they to be relied upon at the substantive hearing, and nothing was particularised in the appellant's submissions to substantiate any concern in relation to how matters played out. In the circumstances I am entirely satisfied that there was no unfairness or procedural irregularity in the proceedings that led to the Panel's factual conclusions in respect of the charges which they found proved and which are the subject of this appeal.

Misconduct and impairment

74. Having reached the conclusions that they had, the CCC proceeded to consider, at the next stage of their deliberations, whether or not their findings of fact led to a conclusion that what the appellant had done amounted to misconduct and, if so, whether his fitness to practise was impaired. The question of whether or not the findings of fact amounted to misconduct was clearly to be judged by reference to the Code. Having assessed whether or not misconduct existed the issue of whether that amounted to an impairment of fitness to practise fell to be assessed by reference to the legal principles distilled by Cox J in Council for Healthcare Regulatory Excellence v NMC and Grant [2011] EWHC 927. Having reviewed the authorities that have considered this question she identified that the principles had been accurately, comprehensibly and succinctly expressed by Dame Janet Smith in her Fifth Report from Shipman and she set the appropriate principles out at paragraph 76 of her judgment in the following terms:

"76 I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph 25.67 she identified the following as an appropriate test for panels considering impairment of a doctor's fitness to practise, but in my view the test would be equally applicable to other practitioners governed by different regulatory schemes.

"Do our findings of fact in respect of the doctor's misconduct, deficient professional performance, adverse health, conviction, caution or determination 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 a patient or patients at unwarranted risk of harm; and/or

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."

The value of this test, in my view, is threefold: it identifies the various types of activity which will arise for consideration in any case where fitness to practise is in issue; it requires an examination of both the past and the future; and it distils and reflects, for ease of application, the principles of interpretation which appear in the authorities. It is, as it seems to me, entirely consistent with the judicial guidance to which I have already referred, but is concisely expressed in a way which is readily accessible and readily applicable by all panels called upon to determine this question."

75. The hearing in respect of this part of the case commenced on 15^th October 2015 with the CCC receiving evidence from the appellant. As part of that evidence the appellant presented a bundle of training certificates together with a collection of disclosures which he had made to employers by whom he had been employed prior to this part of the hearing. The purpose of producing this material was to demonstrate that the appellant was well trained and had a strong history of competent professional practice. It also served to demonstrate that he had been diligent in disclosing his previous employment history and the NMC procedures to those who had been recently employing him, including the end users. There were, in addition, a number of professional references provided speaking to the appellant's good qualities as a clinician and attesting to his honesty and integrity. He was cross-examined on behalf of the respondent and then asked questions by the Panel. By way of example, the Chair of the Panel asked the following questions and received the following answers:

"Q. You as a registered nurse, the Panel has found six findings of dishonesty against you. How do you think findings of dishonesty impact on the reputation of the profession?

A. That's a difficult question for me.

Q. Let me re-phrase it then and I'll try and put it as simply as I can. How would your nursing, do you have an indication of how your nursing colleagues would feel if they knew that you had six instances of dishonesty against you? What would they react? What would they feel like? Being nurses.

A. I think that's a – it's a difficult question for me. If I attempted – I think that the answer to the question may be decipherable from the answer that I gave earlier on about accepting the things that have gone wrong and accepting my – recognising my contribution to what has gone wrong and the effort or the steps that I have one to show to remedify (sic) what then would – you know, to prevent that from happening. But again, so for instance the questions that have just been asked, that a wrong answer has been ticked and that's obviously a mistake. Again, within the realms of human that mistakes can happen. Am I being deliberately dishonest here? No, because as I said to the Panel, that information is actually provided in my CV that I've had gaps in employment and if you look at that CV you'll find there are places that clearly shows that there were gaps and identify what I was doing."

76. At the end of the hearing on 15^th October 2015 the appellant indicated that he did not have any further evidence. It was agreed that the hearing would resume on 18^th January 2016. On that date at the resumption of the hearing further documents were produced by the appellant in support of his case. Amongst the documents which were produced by the appellant (and which led to him giving further evidence on 18^th January 2016), was an email dated 16^th October 2015 written by him to those for whom he was working in which he stated as follows:

"Hello Jamie,

Good morning and I hope this message finds you well

I thought it is appropriate that I feedback to you about he outcome of nmc hearing that was adjourned yesterday.

Whilst a finding of fact in respect of the historical allegations was made, it did not consider that it altered the circumstances of the case and or that my current fitness to practice has been judged to be impaired.

The interim conditions that requires me to make disclosures still remains in place. Apart from these I am still able to practice as a registered Mental health nurse."

77. He was asked about the accuracy of the suggestion made in the third paragraph of that email. In an exchange with a member of the Panel (and leaving out an exchange in relation to the Panel member's demeanour) the following exchange of question and answers occurred:

"Q. I am asking if it is not completely accurate because, if I read it, it says: "Whilst a finding of fact in respect of the historical allegations was made, it did not consider that it altered the circumstances of the case and or that my current fitness to practice has been judged to be impaired." Now, I would suggest that no judgment had been made before, just at the --- that is why we adjourned…

A. The statement actually says in full completeness that, and perhaps I may say that some (unclear) verbose or you mind me – I crave your indulgence and patience. I'm not doing it to incur your displeasure but I am learning also there's a better way out I would, because I think what's required here is candour and the statement is saying that: "In respect of the historical allegations made it did not consider that it altered the circumstances of the case." That is exact word that was culled from the statement, then I added my own words, that's my interpretation of it, that my current fitness to practice had been judged to be impaired.

Now, your statement is that no judgment – I agree that no judgment was made but if you consider that I was already working for her before I came here. Now, her concern is that are you still able to work, so this statement is calculated to explain that within the context of the Interim Orders, within the context of the Interim Orders, within the context of all that has happened, it's like I'm saying it's status quo. I am still able to practice because no judgment of my current fitness to practice has been made and, of course, even words can lend itself to misunderstanding."

78. The appellant then went on to explain that the email suggested that the recipient should feel free to contact the NMC if there were any queries, and also to rely upon the appellant's difficulty as a non-native speaker of English in formulating accurately what it was necessary to convey to his employer.
79. Also amongst the documentation was a reference from a Dr Solanki which spoke to the clinical quality of the appellant's practice and also his ability to work well with a clinical team. The appellant was cross-examined about this document as the respondent had made enquiries and it appeared that the positive reference had been written by Dr Solanki without him being aware of the fitness to practise proceedings which the appellant faced. The appellant accepted that he did not doubt Dr Solanki's evidence to the respondent that he was not aware of the proceedings at the time when he provided the reference. In answer to questions from the Panel the appellant said that he had wanted the reference for two reasons, firstly, to support future revalidation and secondly, because it was useful to have on file references for the purposes of a subsequent employer.
80. Having received the evidence and closing submissions the CCC reached the following conclusions in relation to both misconduct at the appellant's fitness to practise:

"The panel first considered whether the facts found proved amounted to misconduct. It was mindful of its findings relating to the multiple instances of similar dishonest conduct. These involved various attempts to misrepresent the truth to different employers in relation to your previous dismissals and the NMC proceedings. Your conduct concerned five potential employers. The panel found that, by acting as you did, you prevented potential employers from reaching a well-informed decision by deliberately concealing relevant information which would have had a bearing on the assessment of any risks in your practice. Although there were no concerns raised about your clinical practice, the panel concluded that your dishonest conduct was serious in particular because it directly involved your responsibility as a nurse and it was repeated on multiple occasions between 2011 and 2014. The panel found that your conduct was contrary to the standards expected of a registered nurse and impacted on public confidence in the profession. The panel was satisfied that your conduct indicated a pattern of dishonest behaviour and as such it also raised concerns as to public protection matters.

The panel found that you had breached the following parts of the Code (2008):

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 the profession.

In particular the following paragraphs are relevant:

Paragraph 51 – You must inform any employers you work for if your fitness to practise is called into question.

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

At the time of the facts found proved you were an experienced nurse with two degrees a BSc (Hons) Management, 2004, University of Hull and an MSc Mental Health Nursing, 2007, University of Essex. In the course of the hearing you displayed a very good command and understanding of spoken and written English. The panel was satisfied that you were well aware of the standards expected of you, especially the need to be honest and truthful, and that your actions fell seriously short of what is expected of a registered nurse. It determined that, individually and cumulatively, your actions amounted to misconduct.

The panel then considered whether your fitness to practise is currently impaired by reason of that misconduct.

The panel was mindful that impairment has been defined by the NMC as a registrant's suitability to remain on the Register without restriction.

It took into account its findings on the facts and misconduct. The panel bore in mind its duty to protect patients and the wider public interest, including the need to uphold proper standards of practice and of behaviour and to maintain public confidence in the profession.

The panel concluded that your past misconduct which involved repeated dishonesty breached fundamental tenets of the profession, namely honesty and integrity, and brought the profession into disrepute. It also had the potential to raise public protection concerns.

The panel then considered whether in the future there is likely to be a repetition of similar conduct. The panel took into consideration matters such as insight and remorse and also whether your conduct was capable of remedy; whether it has been remedied, and whether it is likely to be repeated.

You have engaged with these proceedings and you gave evidence. However, in your evidence you appeared not to accept the panel's findings of dishonesty made against you and suggested that it all happened 'by mistake'. Although you have expressed an understanding of the seriousness of dishonesty as a general abstract concept, you demonstrated little or no insight in to your actual dishonesty. You seemed to have distanced yourself from the conduct found proved. You have not apologised for it and have not shown an understanding of how that conduct could impact on colleagues, patients, the reputation of the profession and the NMC as regulator. You were evasive and gave lengthy unfocused responses to questions.

In regard to your email dated 16 October 2015, produced at this stage of the hearing, the panel considered that the paragraph quoted above was misleading in that it could give the impression that the panel had made a finding that your fitness to practise was not impaired.

You put before the panel a number of documents and reference letters which made positive comments about your clinical practice and integrity. However, it was not clear to what extent the authors of those references had been made aware of the panel's findings. In particular (Dr 10)'s reference was provided without knowledge of these proceedings. In any event the panel considered that the weight of the evidence of good clinical practice on your part is severely undermined by the findings of repeated and sustained dishonesty made against you. These findings demonstrated a pattern of deceitful behaviour on your part and raised serious questions about your attitude and integrity.

The panel is aware that dishonesty is difficult to remedy, especially when repeated and sustained over a prolonged period of time. You acted in your own interests by not disclosing relevant information to your then potential employers and secured nursing posts by way of deception. The panel was not satisfied that you have developed insight into your past misconduct. Although in your evidence you described yourself as being methodical and meticulous and indicated that taken appropriate disclosure steps in your recent dealings with employers and agencies, in the light of your lack of insight the panel cannot be satisfied that there will be no repetition of your misconduct.

In the circumstances the panel cannot be satisfied that such misconduct would not be repeated in the future.

Your misconduct was so serious that the panel has concluded that your fitness to practise is currently impaired.

The panel is satisfied that the need to protect the public, to uphold proper professional standards and public confidence in the professions and in the NMC as the regulator would be undermined if a finding of impairment were not made in this case.

The panel has therefore concluded that your fitness to practise is currently impaired by reason of your misconduct."

81. For the purposes of this review I have reconsidered all of the documentary material furnished by the appellant and have, as in relation to the findings of fact, fully reviewed the transcript of the proceedings provided by the respondent. The CCC were provided with a careful direction by the Legal Assessor which was not the subject of any criticism, rightly, by the appellant. It is unnecessary for me to set that direction out in full but it clearly identified that misconduct meant "conduct unworthy of a nurse" and went on to advise that misconduct in itself does not amount to impairment. The principles in relation to impairment which have been set out above were succinctly summarised for the Panel. Thus there was no legal misdirection evident from the proceedings or from the decision which I have set out above.
82. In my judgment the conclusions which were reached by the CCC in relation to misconduct were unassailable. Having reached the findings of fact they had in respect of each charge, as they pointed out, they had identified that the appellant was guilty of deliberately and repeatedly concealing relevant information having a bearing on any assessment of risks in his practice. Thus, whilst there were no complaints raised in relation to the quality of the appellant's clinical practice, the failures to disclose, which have been set out above, clearly indicated a pattern of dishonest behaviour which breached the aspects of the Code which were specified in the decision. The finding that the appellant had been guilty of misconduct is in my view entirely appropriate both in terms of any examination of an error of law and also in substance on the merits.
83. The question which then arose was whether or not that misconduct amounted to an impairment of fitness to practise. Again, in my view, the findings of the CCC were clear, coherent and undoubtedly correct. Not only did the misconduct involve dishonesty which amounted to a serious and fundamental breach of the tenets of the appellant's profession, they also raised issues in relation to public protection since the failure to disclose had obvious consequences in relation to any employer or end user's assessment of risks involved in the appellant working in clinical practice. The Panel were correct to take into account the question of whether or not there was evidence of insight or remorse on the part of the appellant. Having reviewed the transcript the Panel's conclusions that the appellant had not accepted the findings of dishonesty made against him, and continued to persist in a denial based upon the non-disclosures having happened by mistake, showed a failure to have either insight or remorse into what had taken place.
84. From my review of the transcripts their judgement that the appellant gave "evasive" and "lengthy unfocused responses" was entirely justified. Furthermore, they were perfectly entitled to take into account the misleading nature of the email written on 16^th October 2015 as further evidence of impairment, along with the fact that a reference had been produced from Dr Solanki without him being aware of the proceedings brought by the respondent. As the Panel pointed out, dishonesty is difficult to remedy when repeated and sustained, and in particular in the absence of any insight or remorse. In the circumstances of this case there is no basis upon which the conclusions which the Panel reached can be properly criticised. Having reviewed their decision I am entirely satisfied that there are no grounds for complaint as suggested by the appellant. All of the factors identified by the Panel and their conclusions were based fairly and squarely on the material which had been placed before them and they were entirely justified conclusions based on that evidence.

Sanction

85. The relevant legal principles in relation to the court's review of sanctions start with the proposition that the CCC will be "centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor" or medical practitioner (see Fatnani [2007] EWCA Civ 46). It is the preservation and maintenance of public confidence in the profession which is central to the CCC's role.
86. In addition, and in the light of this principle, the courts have made clear that personal mitigation in a case of this kind will be of less significance than would be the case, for instance, in a criminal matter. In Bolton v Law Society [1994] 1 WLR 512 at 519 Sir Thomas Bingham MR (as he then was) observed as follows:

"Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely, to be so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price."

87. As will be clear from what has been set out above, dishonesty was a particular feature of the findings which have been reached by the CCC in the present case. In Parkinson v NMC [2010] EWHC 1898 Mitting J observed the following in relation to allegations of dishonesty:

"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 to direct erasure."

88. In order to assist panels of the CCC the respondent publishes "Indicative Sanctions Guidance to Panels". That Guidance reflects the important public interest considerations which have been set out above, and also alerts panels of the CCC to the need to assess proportionality in imposing a sanction alongside having regard to aggravating and mitigating factors. Dishonesty is identified as a particular consideration and reference is made to the case of Parkinson which has been set out above. In the section on sanctions, having reviewed the alternatives, the Indicative Sanctions Guidance to Panels provides material in relation to the imposition of a striking-off order in the following terms:

"Key considerations

74.1 Is striking-off the only sanction which will be sufficient to protect the public interest?

74.2 Is the seriousness of the case incompatible with ongoing registration (see paragraph 70 above for the factors to take into account when considering seriousness)?

74.3 Can public confidence in the professions and the NMC be sustained if the nurse or midwife is not removed from the register?

75. 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 (this list is not exhaustive):

75.1 Serious departure from the relevant professional standards as set out in key standards, guidance and advice including (but not limited to):

75.1.1 The code: Standards of conduct, performance and ethics for nurses and midwives…

75.6 Dishonesty, especially where persistent or covered up"

89. The hearing resumed on 20^th January 2016 in order to hear further submissions in relation to sanction. In support of his case the appellant furnished some further references from those who had had dealings with the appellant speaking to the high quality of his clinical practice and also attesting to his personal qualities in relation to his honesty and integrity. In the course of his submissions he observed the following:

"I have accepted, and I do accept, the various findings of dishonesty have been made by this Panel against me and I have accepted responsibility and, again, acknowledged my role in what went wrong. Further, that my fitness to practice has been judged by this Panel to be impaired.

The conduct being complained of, as the Panel have judged, though very difficult to remediate, my humble submission is that it is not possible to remediate it. I have taken the necessary steps to ensure that it does not happen in the future. It is important to note that of the matters complained of, i.e. not making disclosures of previous employment record, of dismissals, of NMS proceedings, it's been placed before this Panel that I have materially, indeed, made disclosures of same with every single employer that I have worked with during the course of these proceedings."

90. The appellant was cross-examined about the information underpinning the references which he had furnished. The appellant was the subject of further questioning by the Panel and in a lengthy exchange between a member of the Panel and the appellant he was asked whether or not he accepted that he had acted dishonestly. The questions and answers culminated in the following exchange:

"Q. I am just trying to understand what you are saying.

A. What I am trying to say is I have been indeed found to have acted dishonestly by this Panel of those allegations, and I accept those findings, and I've also assured the Panel that the actions that I have been partaking, or I have taken, in fact, these are actions have been proven, they are verifiable, they are codified of what I have been doing to ensure that these things don't happen, and I am not trying to say that what Panel have found is I don't accept them, and if that's how I've come across then I'm sorry, that's not what I'm trying to say.

I do accept the findings that have been made by the Panel and I do accept that the ones that are serious in nature – I have also accepted the ones that are difficult to remediate. I have made the submissions that they're not – they haven't been impossible to remediate and the examples that I've also placed before the Panel where NHS organisations and employers, aware of these disclosures, have happily engaged my services to work as a proficient nurse who respect the integrity and openness and these matters that are in front of you.

Q. Thank you, so your intention at the time was not to be dishonest?

A. At the time I wasn't intending to be. I believe that I – I believe that I wasn't intending to be dishonest.

Q. Right.

A. And if I had been, I have accepted my responsibility, that these failures have been construed to be misunderstood."

91. The appellant also relied upon his personal circumstances as being further mitigation in relation to the sanction imposed upon him. It will be recalled from what has been set out above that the appellant has had considerable difficulties in his personal life associated with the very serious illness of his son and the need for him to provide care for his son. The pressures in the appellant's personal life were further compounded by the breakdown of his marriage which caused him considerable distress. Furthermore, the appellant relied upon the fact that he had financial dependants in the form of his immediate family who, along with himself, would be caused considerable hardship if he were to be deprived of his livelihood as a consequence of any sanction placed upon him. He also referred to evidence in relation to himself being in medical difficulties around the time when some of these allegations were taking place.
92. The conclusion which the Panel reached in relation to sanction was set out as follows:

"The panel was mindful of its duty to serve the public interest. This includes not only the protection of the public, but also maintaining proper standards of conduct and behaviour and upholding the reputation of the profession and the NMC as regulator.

The panel recognised that it must apply the principle of proportionality, balancing the public interest with your own interests, and taking account of the aggravating and mitigating factors in the case.

The panel accepted that the purpose of any sanction is not to be punitive, although it may have a punitive effect. The purpose of sanctions is to protect the public from those who are not fit to practise, to maintain proper standards of conduct and to uphold confidence in the profession and the NMC as its regulator.

In reaching its decision, the panel as an independent body exercised its own professional judgment and took into account the NMC ISG.

The panel considered the aggravating features. These involved multiple instances of dishonest conduct between 2011 and 2014. You made no admissions to the dishonesty found proved and continued to deny this even at this stage of the proceedings. You displayed a continuing lack of insight in respect of the dishonesty found proved. Although at this stage of the proceedings, you made a qualified apology for your conduct, you again denied that you intended to be dishonest, thereby rejecting the panel's findings. Your dishonesty was deliberate, persistent and sustained. You were an experienced and educated nurse, well aware of what was expected of you. Your dishonest conduct in relation to the multiple incidents found proved was arrogant and showed a disregard for the impact of your actions on potential employers' assessment of risk and on the reputation of the profession. By acting as you did you abused your position of trust. Because of your persistent and sustained dishonest conduct and your current lack of insight the panel had concerns regarding your attitude and ability to understand fully your responsibility as a registered nurse. Your conduct raised serious concerns regarding public protection and public interest matters.

The mitigating factors are that you have engaged with these proceedings. The references refer to your good clinical skills and nursing practice, albeit in each case they referred to your services for only a limited period of time. There is no evidence before the panel of any subsequent incident. The panel had regard to the evidence about your personal financial circumstances including your responsibilities for others.

The panel first considered whether to take no action. This would be wholly insufficient. The misconduct found proved is so serious that it demands the imposition of a sanction.

The panel then considered a caution order. Your misconduct was repeated over a significant period of time and it is compounded by your continuing lack of insight. This misconduct cannot properly be regarded as being at the lower end of the spectrum of impaired fitness to practise. Accordingly a caution order would be insufficient. It would not protect the public nor would it address the need to protect the public interest in maintaining confidence in the profession and upholding proper standards of conduct and behaviour.

The panel then considered a conditions of practice order. There were no apparent concerns about your clinical practice as a registered nurse but the case concerned your attitude and behaviour. No conditions of practice could be formulated which would address the attitudinal aspects of this case. A conditions of practice order would not be sufficient to protect the public nor would it meet the wider public interest.

The panel next considered a suspension order. You abused your position of trust; showed lack of regard for others in the profession; you acted dishonestly on multiple instances, breached fundamental tenets of the profession and damaged its reputation. Although there are positive references about your clinical practice, these have limited weight against the background of sustained dishonesty and your continuing lack of insight. The dishonesty found proved is so serious that it is fundamentally incompatible with your continuing to remain on the register. In these circumstances a period of suspension would not be sufficient to protect the public nor would it send out an appropriate message to the public and the profession. Such an order would be insufficient as a sanction.

The panel therefore concluded that the only sufficient and proportionate sanction is a striking-off order. The need to protect the public and uphold public confidence in the professions could not be achieved if your name were to remain on the register.

The panel was satisfied that these considerations outweighed any consequential financial hardship or other impact that a striking-off order may have on you"

93. Having reviewed the conclusions which the Panel reached, and the written and oral evidence which they had before them, together with the submissions made on both sides, I am satisfied that there is no basis upon which to grant this appeal against the sanction which was imposed. Firstly, the Panel properly directed themselves in relation to proportionality and taking full and proper account of mitigating factors in the case. Although it is a Ground of appeal that the Panel failed to take account of the appellant's mitigation, I can see no evidence in the reasons provided by the Panel that that is the case. They clearly took account of the mitigation, both in relation to the quality of the appellant's clinical skills and nursing practice, and also in relation to the appellant's personal circumstances and the consequential financial hardship which would arise from the order which they made.
94. I am also unpersuaded that the decision in relation to sanction in this case was disproportionate. The particular considerations which arise in relation to cases of dishonesty have been set out above, including in particular the observations of Mitting J in Parkinson. Bearing in mind the importance of protecting the reputation of the profession, dishonesty which has been found but is still disputed by the practitioner is both difficult to remedy and a very weighty consideration in support of the sanction of striking off. It is clear that the sanction which was imposed was consistent and flowed from the application of the respondent's Guidelines. On the basis of findings of sustained and repetitive dishonesty the Panel were entitled to conclude that the protection of the public, and the wider public interest, could only be sustained by a striking off order. As they observed, the need for public protection and upholding public confidence in the profession could not be achieved by the appellant's name remaining on the register.
95. For all of these reasons I am satisfied that there is no basis for allowing the appellant's appeal in relation to the striking off order which was imposed in this case.

Conclusions

96. For all of the reasons which have been set out above I am satisfied, having applied the appropriate standard of review in this case, that there is no basis upon which the appellant's appeal could be allowed against any of the findings, conclusions and orders which were reached by the CCC in his case. This appeal must therefore be dismissed on all Grounds.