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Conduct and Competence Committee Substantive Hearing
01 - 04 February 2016
Nursing and Midwifery Council
2 Stratford Place, London E20 1EJ Name of Registrant Nurse: Mrs Sarah Jane Rachael Bratby NMC PIN: 90G0083E Part(s) of the register: Registered Nurse – Sub Part 1 Adult (22 August 1993) Children’s (30 September 1997) Area of Registered Address: Coventry Type of Case: Misconduct Panel Members: Mr Paul Powici (Chair & Lay Member) Ms Gi Cheesman (Lay member) Mr Paul Warburton (Registrant member) Legal Assessor: Mr Barrie Searle
Panel Secretary: Mr Ian Dennehey Representation:
Nursing and Midwifery Council: Represented by Ms Bo Kay Fung, Counsel, instructed by NMC Regulatory Legal Team.
Registrant: Mrs Bratby was neither present nor
represented. Facts Found Proved: All Fitness to Practise: Currently Impaired by reason of misconduct. Sanction: Striking-Off Order. Interim Order: Interim Suspension Order: 18 months.
Detail of Charges:
That you, whilst employed by the University Hospitals Coventry and Warwickshire NHS Trust (‘the Trust’) as the Registered Manager of the Children’s Emergency Department and/or as a Band 5 Nurse:
1. Failed to complete your shift as Band 7 Registered Manager of the Children’s Emergency Department on one or more occasions set out in Column A of Schedule 1; Found Proved
2. Failed to complete your bank shift as a Band 5 nurse on one or more
occasions set out in Column B of Schedule 1; Found Proved
3. Received payment for time that you had not been on duty in respect of
one or more occasions set out in Column B of Schedule 1; Found Proved
4. Were dishonest in your conduct at charge 3 in that you knew that you had
been on duty for fewer hours that you had received payment for; Found Proved
5. Authorised your own bank shifts on one or more occasions set out in Column C of Schedule 1; Found Proved re all the occasions in Column C
6. Were dishonest in your conduct at charge 5 in that you knowingly
misrepresented that you were entitled to authorise your own bank shifts; Found Proved
7. Authorised your own bank shifts prior to completing those shifts as set out
in Column D of Schedule 1 on one or more occasions set out in Column C of Schedule 1. Found Proved
8. Were dishonest in your conduct at charge 7 in that you knew by
authorising the shifts you were confirming that you had completed the shifts but knew that you had not yet completed the shifts; Found Proved
9. Authorised your own bank shifts when you had not completed those shifts
as set out in Column E of Schedule 1 on one or more occasions set out in Column C of Schedule 1. Found Proved
10. Were dishonest in your conduct at charge 9 in that you knew by
authorising the shifts you were confirming that you had completed the shifts but knew that you had not yet completed the shifts; Found Proved
That you, when applying to Facilitate Care Services Limited for a post as a registered Nurse:
11. On 25 November 2013 did not disclose that you had been dismissed by the Trust when asked by [Ms 4] why you were seeking work Found Proved
12. Were dishonest in your conduct at charge 10 11 in that you knowingly
misled [Ms 4] as to the reasons why you were seeking work. Found Proved as amended
And, in the light of the above, your fitness to practice is impaired by reason of your misconduct. Found Proved
Schedule 1
Column A: Substantive shift not completed
Column B: Bank shift not completed
Column C: Date you authorised your own bank shift
Column D: Bank shift authorised before the shift was due to be completed
Column E: Bank shift which was not completed and was authorised after the shift was
due to be completed
Shift Date A B C D E
16 July 2011 X
23 July 2011 X
28 August 2011 X
10 September 2011 X
17 September 2011 X
29 October 2011 X
12 November 2011 X
19 January 2012 X 23 January 2012 X
28 January 2012 X
30 January 2012 X
03 February 2012 X
11 February 2012 X 11 February X
18 February 2012 18 February 2012 X
01 March 2012 X
05 March 2012 X
08 March 2012 X
09 March 2012 X
17 March 2012 X
22 March 2012 X X 26 March 2012 X
28 March 2012 X
31 March 2012 X
03 April 2012 X
05 April 2012 X
12 April 2012 X 12 April 2012 X
19 April 2012 X 21 April 2012 X
21 April 2012 21 April 2012 X
25 April 2012 X
03 May 2012 X
05 May 2012 X 8 May 2012 X
12 May 2012 12 May 2012 X
13 May 2012 X 12 May 2012 X
24 May 2012 X
30 May 2012 X
04 June 2012 X
09 June 2012 X
16 June 2012 X
21 June 2012 X
26 June 2012 X
27 June 2012 X
30 June 2012 30 June 2012 X
01 July 2012 X 30 June 2012 X
06 July2012 X X
07July 2012 X 9 July 2012 X
12 July 2012 X
14 July 2012 X
02 August 2012 X X 4 August 2012 X
04 August 2012 X 4 August 2012 X
07 August 2012 X X 10 August 2012 X
08 August 2012 10 August 2012 X
09 August 2012 X 10 August 2012 X
18 August 2012 X
25 August 2012 X
27 August 2012 X
06 September 2012 X
13 September 2012 X
15 September 2012 X 15 September 2012 X
20 September 2012 X
21 September 2012 X
22 September 2012 X 22 September 2012 X
06 October 2012 X
11 October 2012 X
20 October 2012 X 22 October 2012 X
03 November 2012 X
17 November 2012 X
22 November 2012 X
01 December 2012 X
05 December 2012 X
06 December 2012 X
11 December 2012 X
14 December 2012 X
15 December 2012 X
20 December 2012 X
10 January 2013 X
12 January 2013 X
16 January 2013 X
18 January 2013 X
26 January 2013 X
31 January 2013 X
04February 2013 X
06 February 2013 X
09 February 2013 X
14 February 2013 X
21 February 2013 X
07 March 2013 X
09 March 2013 X
Determination on Service [01 February 2016]: The panel noted that Mrs Bratby was neither present nor represented in her absence.
The panel was advised that, on 29 December 2015, written notice of this hearing,
containing the information required by Rule 11 of the Nursing and Midwifery(Fitness to
Practise) Rules Order of Council 2004 as amended, (‘the Rules’), was sent to Mrs
Bratby’s registered address by recorded delivery, as required by Rule 34. Royal Mail
“Track and Trace” documentation confirmed that the letter was sent by that postal
service on that date albeit that it also indicates that the item was returned to the Nursing
and Midwifery Council (NMC) on 11 January 2016.
However, the panel also heard that, as a consequence of information provided by a
tracing agent, a copy of the written notice of the hearing was sent to Mrs Bratby at an
alternative postal address on 29 December 2015. Royal Mail “Track and Trace”
documentation confirmed that the letter was sent by recorded delivery to that alternative
address and was delivered and signed for on 30 December 2015. The printed name of
the person recorded as having accepted delivery is ‘Sarah Bratby’.
The panel accepted the advice of the Legal Assessor.
In the light of all of the information available, the panel determined that the requirements
of Rules 11 and 34 have been satisfied.
Determination on proceeding in the absence of the Registrant [01 February 2016]: The panel had regard to Rule 21 (2) (b) which states:
“Where the registrant fails to attend and is not represented at the hearing, the Committee...may, where the Committee is satisfied that the notice of hearing has been duly served, direct that the allegation should be heard and determined notwithstanding the absence of the registrant...”
Ms Fung invited the panel to continue in the absence of Mrs Bratby on the basis that
she had voluntarily absented herself from the hearing, thereby waiving her right to
attend. She submitted that Mrs Bratby had not responded to the charges or to the notice
of hearing and, despite attempts by the NMC to contact her by telephone and email,
had not engaged with the NMC in relation to this hearing. Ms Fung submitted that there
was no reason to believe that an adjournment would be likely to secure Mrs Bratby’s
attendance on some future occasion. Miss Fung drew to the panel’s attention to the fact
that the notice letter made clear that the panel had the power to proceed in Mrs Bratby’s
absence.
The panel accepted the advice of the Legal Assessor and it noted the factors he
indicated the panel should take into account when reaching its decision. It applied the
principles set out in the case of R v Jones [2002] UKHL 5. The panel noted that the
discretionary power to proceed in the absence of a registrant under the provisions of
Rule 21 is one to be exercised “with the utmost care and caution”.
In the particular circumstances of the case, the panel decided that it was fair,
appropriate and proportionate to proceed today in the absence of Mrs Bratby. In
reaching this decision, the panel had regard to the overall interests of justice and
fairness to all parties and considered the nature and circumstances of Mrs Bratby’s
absence. It took account of the risk of reaching a wrong decision in her absence. It
noted in particular the following:
• Mrs Bratby is or should be aware of the hearing;
• Mrs Bratby has not sought an adjournment;
• there is no reason to suppose that adjourning, which would inevitably involve
delay which could be significant, would secure Mrs Bratby’s attendance on some
future occasion or serve any other useful purpose;
• the charges dated back to 16 July 2011;
• witnesses are due to attend in order to give evidence and may be
inconvenienced by a further adjournment;
• further delay may have an adverse impact on the ability of witnesses to recall the
events in question;
• there is a strong public interest in the expeditious disposal of the case.
There is some disadvantage to Mrs Bratby in proceeding in her absence. She will not be
able to challenge the evidence brought by the NMC nor will she be able to give live
evidence on her own behalf. She will not be able to make submissions. However, in the
panel’s judgment, Mrs Bratby has voluntarily absented herself from the hearing, thereby
waiving her rights to attend and make submissions in person.
In all the circumstances, the panel has decided that it is fair, appropriate and
proportionate to proceed in the absence of Mrs Bratby. In reaching this decision, the
panel had regard to the overall interests of justice and fairness to all parties. In its
consideration of the facts the panel will draw no adverse inference from Mrs Bratby’s
absence. The panel considered that it is well placed to assess the quality of evidence
and determine the weight to attach to the evidence before it. The panel can make such
allowance as it considers appropriate in light of the fact that the NMC’s evidence will not
be tested by formal cross-examination.
After the panel had announced the above determination, Ms Fung provided it with a
copy of a document she had received via email from the Case Officer whilst the panel
had been in private session reading the documentation already exhibited. This further
document contained Mrs Bratby’s response to the notice of hearing in which she states
that she will not be attending the hearing, gives her reasons for her absence, makes
clear that she will not be represented and, whilst confirming that she denies all of the
facts alleged, also makes specific representations in relation to charges 2 and 11.
Having heard from the Legal Assessor the panel considered whether this document
required it to review its earlier determination to proceed in Mrs Bratby’s absence. The
panel determined that her expressed intention not to attend reinforced its decision.
Furthermore, the panel noted that the personal nature of the explanation Mrs Bratby
provides for her absence means that there is no reason to conclude an adjournment
would secure her presence on some future occasion.
The panel will give such weight as it considers appropriate to Mrs Bratby’s written
representations regarding charges 2 and 11 at the fact finding stage and can ensure
that her position in relation to those matters is explored with the NMC’s witnesses. Determination to amend Charge 12 [01 February 2016]:
Ms Fung invited the panel to amend charge 12 by replacing the words “Were dishonest
in your conduct at charge 10” with the words “Were dishonest in your conduct at charge
11”.
Ms Fung submitted that no injustice would be caused by the amendment on the basis
that it was of a typographical nature and because it was in Mrs Bratby’s own interest
and in the interests of justice that the charges were correct and that they accurately
reflected the evidence.
Rule 28(1) states:
“At any stage before making its findings of fact … the Conduct and Competence
Committee may amend –
(a) the charge set out in the notice of hearing; or
(b) the facts set out in the charge, on which the allegation is based, unless,
having regard to the merits of the case and the fairness of the proceedings,
the required amendments cannot be made without injustice.”
Rule 28 (2) states:
“Before making any amendment under paragraph (1) the Committee shall
consider any representations from the parties on this issue.”
In reaching its decision, the panel had regard to the submissions made by
Ms Fung. It accepted the advice of the Legal Assessor.
The panel determined that the proposed amendment should be allowed. In the panel’s
judgment this typographical change does not materially alter the nature of the charges.
Moreover, the evidence upon which the charge is based will have been disclosed to Mrs
Bratby. The panel concluded that, having regard to the merits of the case and fairness
of the proceedings, the amendment can be made without injustice.
Determination on the Facts [03 February 2016]: Ms Fung submitted that the case against Mrs Bratby in relation to her employment at
the University Hospitals Coventry and Warwickshire NHS Trust involved: her failing to
compete various shifts between 16 July 2011 and 09 March 2013; acting dishonestly in
relation to receiving payment for hours she knew she had not worked; knowingly
misrepresenting that she was entitled to authorise her own bank shifts; and, authorising
shifts prior to completing them and in the knowledge that they had not been completed.
Ms Fung submitted that the case against Mrs Bratby in relation to her application for
employment as a Registered Nurse with Facilitate Care Services involved her acting
dishonestly by not disclosing that she had been dismissed by the Trust when asked why
she was seeking work.
In reaching its decisions on the facts, the panel considered all of the evidence adduced,
both oral and documentary. It gave the evidence such weight as it deemed appropriate.
The panel noted Ms Fung’s submissions together with the written representations made
by Mrs Bratby as contained within her response to the charges document.
The panel accepted the advice of the Legal Assessor.
The panel noted that the burden of proof rests entirely upon the NMC and that Mrs
Bratby does not have to prove or disprove anything. The standard of proof is the civil
standard, namely on the balance of probabilities. This means that, for a fact to be found
proved, the NMC must satisfy the panel that what is alleged to have happened is more
likely than not to have occurred. In determining the facts, the panel was scrupulous not
to draw any inference adverse to Mrs Bratby’s interests from her absence. The panel
noted that it is entitled to draw common-sense inferences but not to speculate.
Charges 1, 2, 3, 5, 7 and 9 all relate to dates that are set out in the various columns of
Schedule 1 and are advanced on the basis that the seriousness of what is alleged
occurred on “one or more” of the occasions cited in the particular column in question.
The panel determined that whilst each of these charges could be proved if the panel
was satisfied in respect of only one of the dates in the relevant column, it would be
appropriate to consider all of the dates alleged.
Charges 1 and 2 are advanced on the basis of an alleged “failure” by Mrs Bratby. The
panel accepted that it was for the NMC to demonstrate, in the context of the charges,
that Mrs Bratby had a professional duty to act in a particular way, had not done so and
that any omission in that regards was culpable or blameworthy.
Charges 4, 6, 8, 10 and 12 are allegations of dishonesty. In considering those charges
the panel applied the two stage test as set out by Lord Lane, Lord Chief Justice, in the
case of R v Ghosh [1982] EWCA Crim 2, and modified by Mr Justice Mostyn in the case
Kirschner v General Dental Council [2015] EWHC 1377 (Admin).
In the latter case, Mr Justice Mostyn reviewed the legal authorities in relation to the
proper approach to consideration of an allegation of dishonesty in civil proceedings and
said:
“The tribunal should first determine whether on the balance of probabilities, a
defendant acted dishonestly by the standards of ordinary and honest members of
that profession; and, if it finds that he or she did so, must go on to determine
whether it is more likely than not that the defendant realised that what he or she
was doing was by those standards, dishonest.”
In considering whether Mrs Bratby has been dishonest as alleged, the panel also had in
mind the advice of the Legal Assessor as to the need for a civil tribunal to be satisfied
that there was cogent evidence of dishonesty before making such a finding.
The following gave evidence in person:
• Mr 1, Chief Financial Accountant at the Trust since 2004;
• Mr 2, Human Resources Advisor at the Trust since 2007.
• Mr 3, a self-employed Counter Fraud Investigator.
• Ms 4, Registered Nurse and, since January 2013, Co-Director of Facilitate
Care Services Ltd.
In determining the appropriate weight to attach to the evidence of each witness the
panel made an assessment of their credibility and reliability.
The panel found all of the NMC witnesses to be honest, reliable and credible. Their oral
evidence was consistent with their written accounts and with the relevant documentary
evidence. They were candid in accepting that there were gaps in their knowledge. They
did not embellish their evidence to Mrs Bratby’s disadvantage and the panel saw no
evidence that they had any reason so to do. In the panel’s judgment, Mr 1 was, at times,
slightly hesitant but the panel did not consider that this undermined his overall reliability.
The panel noted that Mr 3 had worked with the information provided to him by the Trust,
for example, time sheets. He stated that he had not sought to verify its content. The
panel accepted that he had no reason to question the accuracy of the information
produced. Ms 4 was a straightforward and consistent witness.
The panel now makes the following findings of fact: Charge 1. The allegation is that whilst employed by the Trust as the Registered Manager of the Children’s Emergency Department and/or as a Band 5 Nurse, Mrs Bratby failed to complete her shift as Band 7 Registered Manager of the Children’s Emergency Department on one or more occasions set out in Column A of Schedule 1. This Charge is Found Proved. Charge 2. The allegation is that whilst employed by the Trust as the Registered Manager of the Children’s Emergency Department and/or as a Band 5 Nurse, Mrs Bratby failed to complete her shift as a Band 5 nurse on one or more occasions set out in Column B of Schedule 1. This Charge is Found Proved.
Although the panel considered Charges 1 and 2 separately, it reached its findings on
each on the same basis and for the same reasons.
In coming to its decisions, the panel accepted the oral and documentary evidence of Mr
3. His evidence, in the form of spreadsheets, setting out dates between 28 January
2012 - 09 March 2013 and 16 July 2011 - 12 November 2011 respectively identifying
occasions when Mrs Bratby, working either in her substantive role or as a Band 5 nurse
undertaking bank work, had been recorded as not completing her shifts, tallied with the
respective dates set out in columns A and B of Schedule 1.
The panel noted the evidence that, on occasion and with permission, a nurse might
leave before the scheduled end of a shift.
In the notes of a local investigatory meeting dated 22 May 2013, Mrs Bratby is recorded
as saying that:
• she might have left early if she had been unable to take a break during the shift;
• she had on occasion gone in and left two hours early, thereby working the correct
number of hours in total;
• sometimes, her need to care for her daughter required her to finish work at 6.30
pm rather than 8.30 pm.
However, Mrs Bratby is also recorded as saying that she only left early with permission
of the Band 6 Registered Nurse and on the understanding that the ward was properly
staffed. Asked if she would have amended her claim form to reflect an early departure,
Mrs Bratby is recorded as saying that she would have notified Ms 5 if this happened.
The panel discounted the account of the various reasons Mrs Bratby is recorded to
have offered during the investigatory meeting as an explanation for why she may have
left a shift early or not completed her shift and in respect of the discrepancies between
hours booked, hours worked and times when her access and egress was electronically
recorded. In the panel’s judgment, the reasons are implausible. Her apparent assertions
that she did not leave shifts regularly, conflicts with the documentary evidence which the
panel accepted, namely that she frequently did not complete her shifts. Her claim that
having left early, she would have amended her claim form to reflect that fact, and/or
notified Ms 5, conflicts with the evidence that indicates she frequently did not complete
her shifts but was nevertheless paid for hours that she had not worked. Her explanation
that she had given her ID card to a third party or third parties in order to access the
Trust car park conflicts with her assertion that she only did so when they themselves
had hospital appointments to attend which itself is wholly at odds with the frequency
with which, if true, such individuals were using her ID badge. Furthermore, Mrs Bratby’s
own ability to access the Hospital without her ID Badge would have been so impeded as
to make work impracticable. The panel was satisfied that, having contracted to work a shift, Mrs Bratby had a
professional responsibility so to do. In the panel’s judgment, not completing her shift on
the occasions detailed in columns A and B of Schedule 1 constitutes multiple culpable
failures.
Charge 3. The allegation is that whilst employed by the Trust as the Registered Manager of the Children’s Emergency Department and/or as a Band 5 Nurse, Mrs Bratby received payment for time that she had not been on duty in respect of one or more occasions set out in Column B of Schedule 1. This Charge is Found Proved. In coming to its decision, the panel accepted the evidence of Mr 3 to the effect that he
had checked the dates in question with a Finance Manager at the Trust and had
established that Mrs Bratby had been paid for the hours that she had claimed.
The panel concluded, in the light of the above and as a logical consequence of its
finding at Charge 2, that Mrs Bratby had received payment for hours that she had not
worked as alleged.
Charge 4. The allegation is that whilst employed by the Trust as the Registered Manager of the Children’s Emergency Department and/or as a Band 5 Nurse, Mrs Bratby was dishonest in her conduct at charge 3 in that she knew that she had been on duty for fewer hours that she had received payment. This Charge is Found Proved. In coming to its decision, the panel first satisfied itself that Mrs Bratby would have
known that she had received payment for hours that she had not worked because she
would have been aware that she had not completed her shifts on the occasions in
question. The panel also concluded that, given the frequency with which Mrs Bratby did
not complete her shifts, she would have known that the overpayments she received did
not constitute an isolated error by the Trust’s payroll staff.
The panel next considered whether Mrs Bratby’s conduct in receiving payment for time
that she had not been on duty on the occasions set out in column B of Schedule 1
would be deemed to be dishonest by the standards of ordinary and honest nurses. In
the panel’s judgment, the standards of ordinary and honest nurses include those
contained within the NMC document “The code Standards of conduct, performance and
ethics for nurses and midwives” (‘the Code’) which makes clear that a nurse must be
open and honest, act with integrity and must not abuse their privileged position for their
own ends. The panel had no doubt that ordinary and honest nurses would conclude that
it was dishonest for a fellow professional to receive payment for contractual hours which
they had knowingly not worked and to which they were therefore not entitled.
Having reached that conclusion the panel therefore considered whether Mrs Bratby
must have known herself that her conduct was dishonest according to the standards of
ordinary and honest nurses. Bearing in mind her duty to adhere to the standards set out
in the Code as well as to her experience and seniority as a registered nurse, the panel
was satisfied that Mrs Bratby would have realised herself that her conduct in receiving
payment for hours she had not worked and to which she was not entitled was dishonest
according to the standards of ordinary and honest nurses.
The panel’s judgment as to this matter was also informed by the evidence of Mrs
Bratby’s email to Mr 6, an E-Rostering Systems Administrator, dated 12 April 2012, in
which she reports that a colleague did not attend work on 4 April and states that the
colleague “owes the dept 7.5 hrs”. The panel concluded that the only proper inference
to draw from this email is that Mrs Bratby recognises that a nurse is not entitled to be
paid for hours not worked.
Charge 5. The allegation is that whilst employed by the Trust as the Registered Manager of the Children’s Emergency Department and/or as a Band 5 Nurse, Mrs Bratby authorised her own bank shifts on one or more occasions set out in Column C of Schedule 1. This Charge is Found Proved.
The panel noted the evidence of Mr 3 who described the process of authorising and
“locking down” bank shifts which involved a number of stages and required final signing-
off by a manager using the E-Rostering system. His understanding was that employees
would indicate an interest in working shifts available on the E-Rostering system. The
Unit Manager would confirm or decline requests and staff would work shifts accordingly.
The Unit Manager would subsequently confirm the actual hours worked and would
notify the E-Rostering team accordingly. The approval of the hours constituted the
“locking down” of the shift in question. Staff would then receive the payment due to
them for the hours they had worked. However, Mr 3 conceded that whilst he understood
how the system was intended to operate he was not in a position to say how it may
have actually been operated.
In coming to its decision, the panel relied upon the evidence of the emails from Mrs
Bratby requesting that her shifts be “locked down” or authorised in what the panel
understood was a prerequisite for payment to be made. The panel satisfied itself that
the dates to which these requests relate are those set out in column C of Schedule 1.
Charge 6. The allegation is that whilst employed by the Trust as the Registered Manager of the Children’s Emergency Department and/or as a Band 5 Nurse, Mrs Bratby was dishonest in her conduct at charge 5 in that she knowingly misrepresented that she was entitled to authorise her own bank shifts; This Charge is Found Proved.
On the basis of the notes of the investigatory meeting dated 22 May 2013, the panel
was satisfied that Mrs Bratby was well aware of the process for authorising payment
and “locking down” bank shifts. Mrs Bratby is recorded as stating that Ms 5, or in her
absence Ms 7, would do this. She is further recorded as saying that she would only
advise the E-Rostering team that her own bank shift could be “locked down” if Ms 5 and
Ms 7 were both absent. Her email to Mr 6 dated 12 April 2012 states: “Can you please
lock down my bank shift i’ve done on Thursday 12th April as [Ms 5] is on annual leave.”
However, none of the other emails which Mrs Bratby sent to the E-Rostering team
requesting them to “lock down” her bank shifts suggests that she was making the
request because one or both of the managers authorised to give approval were absent.
In the panel’s judgment, whilst it had no specific evidence as to this matter, given the
number of occasions when Mrs Bratby authorised her own bank shifts as set out in
column C of Schedule 1 and the single occasion when she herself refers to the absence
of Ms 5, it would seem improbable that both Ms 5 and Ms 7 were absent each time.
The panel determined that by sending emails to the E-Rostering team asking for her
bank shifts to be locked down, Mrs Bratby was representing that she was entitled to
authorise her own shifts. The panel satisfied itself that Mrs Bratby was thoroughly
conversant with the way in which the system operated not least because Mrs Bratby
was herself able to authorise claims on behalf of other staff. As a consequence the
panel decided that she knowingly misrepresented that she was entitled to authorise her
own bank shifts.
The panel next considered whether Mrs Bratby’s conduct in authorising her own bank
shifts was dishonest.
The panel noted that the NMC’s witnesses readily accepted that, at the time, there was
no written policy in effect at the Trust specifically prohibiting Mrs Bratby from authorising
her own bank shifts. There was no evidence before the panel to suggest that Mrs Bratby
ever received feedback from the E-Rostering Team telling her that she should not be
requesting them to lock down her hours, thereby authorising her own bank shifts.
However, it follows that as an authorised signatory, Mrs Bratby’s name is likely to have
been familiar to the E-Rostering system administration staff and this may help to explain
why her requests were not challenged.
Moreover, despite the absence of a formal written policy, the panel also heard that it
was a well-established principle that an employee was not permitted to authorise their
own overtime claim nor, in effect, to “sign their own cheque” with all the conflict of
interest which would thereby exist. In the panel’s judgment as an experienced and
senior nurse, Mrs Bratby would have been aware of this principle.
In the panel’s judgment, ordinary and honest nurses would conclude that it was
dishonest for a fellow professional to knowingly misrepresent that they were entitled to
authorise their own bank shifts, and thereby receive payment for those shifts, when this
was not the case, given a nurse’s professional duty to be honest and act with integrity at
all times.
Having reached that conclusion the panel then considered whether Mrs Bratby must
have known herself that her conduct was dishonest according to the standards of
ordinary and honest nurses. Bearing in mind her duty to adhere to the standards set out
in the Code as well as to her experience and seniority as a registered nurse, the panel
was satisfied that Mrs Bratby would have realised that her conduct in misrepresenting
that she was entitled to authorise her own bank shifts was dishonest according to the
standards of ordinary and honest nurses.
In reaching that finding, the panel concluded that Mrs Bratby had a significant motive for
seeking to represent that she was entitled to authorise her own bank shifts since so
doing might mean that her claims in respect of hours she had not in fact worked might
be less likely to be discovered.
Charge 7. The allegation is that whilst employed by the Trust as the Registered Manager of the Children’s Emergency Department and/or as a Band 5 Nurse, Mrs Bratby authorised her own bank shifts prior to completing those shifts as set out in Column D of Schedule 1 on one or more occasions set out in Column C of Schedule 1; This Charge is Found Proved. The panel found this charge proved on the basis of the documentation presented. The
panel noted that the detail of the bank shifts which Mrs Bratby authorised prior to
completing as set out in column D of Schedule 1 tally with the dates set out in column C
of Schedule 1. Moreover, Mrs Bratby’s emails to the E-Rostering Team repeatedly ask
them to lock down her shifts in relation to shifts which she had not completed and even,
on one occasion, refer to a shift she had not commenced.
Charge 8. The allegation is that whilst employed by the Trust as the Registered Manager of the Children’s Emergency Department and/or as a Band 5 Nurse, Mrs Bratby was dishonest in her conduct at charge 7 in that she knew by authorising the shifts she was confirming that she had completed the shifts but knew that she had not yet completed the shifts; This Charge is Found Proved.
In the panel’s judgment, ordinary and honest nurses would conclude that it was
dishonest for a fellow professional to represent that they had completed work when that
was not the case, given a nurse’s professional duty to be honest and act with integrity at
all times.
Having reached that conclusion the panel then considered whether Mrs Bratby must
have known herself that her conduct was dishonest according to the standards of
ordinary and honest nurses. Bearing in mind her duty to adhere to the standards set out
in the Code as well as to her experience and seniority as a registered nurse, the panel
was satisfied that Mrs Bratby would have realised that her conduct in misrepresenting
that she was entitled to authorise her own bank shifts was dishonest according to the
standards of ordinary and honest nurses. In coming to this conclusion, the panel also
had regard to the notes of the local investigatory meeting dated 22 May 2013 which
record that Mrs Bratby was asked if it was appropriate that a bank shift should be locked
down before it was completed. Mrs Bratby is said to have replied: “No, it would
generally be on the next working day and not before a shift is complete.”
Charge 9. The allegation is that whilst employed by the Trust as the Registered Manager of the Children’s Emergency Department and/or as a Band 5 Nurse, Mrs Bratby authorised her own bank shifts when she had not completed those shifts as set out in Column E of Schedule 1 on one or more occasions set out in Column C of Schedule 1. This Charge is Found Proved. The panel found this charge proved on the basis of the documentation presented. The
panel noted that the detail of the bank shifts which Mrs Bratby authorised prior to
completing as set out in column E of Schedule 1 tally with the dates set out in column C
of Schedule 1. Moreover, Mrs Bratby’s emails to the E-Rostering Team repeatedly ask
them to lock down her shifts in relation to shifts which she had not completed.
Charge 10. The allegation is that whilst employed by the Trust as the Registered Manager of the Children’s Emergency Department and/or as a Band 5 Nurse, Mrs Bratby was dishonest in her conduct at charge 9 in that she knew by authorising the shifts she was confirming that she had completed the shifts but knew that she had not yet completed the shifts; This Charge is Found Proved.
The panel reached this finding on the same basis and for the same reasons as its
finding in respect of Charge 8.
Charge 11 The allegation is that, when applying to Facilitate Care Services Limited for a post as a registered Nurse, on 25 November 2013, Mrs Bratby did not disclose that she had been dismissed by the Trust when asked by [Ms 4] why she was seeking work; This Charge is Found Proved. In coming to its decision, the panel accepted the evidence of Ms 4 and noted the
documentary evidence of Mrs Bratby’s application form. The panel also had regard to
Mrs Bratby’s observation in her written response to the notice of hearing form in which
she states, in relation to this charge “I was never asked. I never even had an interview.”
Paradoxically, although the panel concluded that the second sentence of Mrs Bratby’s
written response to this charge caused it to have some concern about her veracity,
taken at face value, Mrs Bratby’s assertion that she was “never asked” would seem to
support the proposition that she did not disclose that she had been dismissed by the
Trust.
The panel accepted that whilst Ms 4 may not have asked Mrs Bratby directly if she had
been dismissed she did ask why Mrs Bratby was seeking employment at a lower level
than her previous Band 7 post. Ms 4 told the panel that in reply Mrs Bratby did not
disclose that she had been dismissed but explained that she wished to have more
“flexibility” and referred to her personal and family circumstances.
Charge 12 The allegation as amended is that Mrs Bratby was dishonest in her conduct at charge 11 in that she knowingly misled [Ms 4] as to the reasons why she was seeking work. This Charge is Found Proved. In the panel’s judgment, Mrs Bratby had a professional duty to be open and honest, act
with integrity and uphold the reputation of her profession at all times.
By 25 November 2013, Mrs Bratby had had two opportunities to disclose to Ms 4 that
she had been dismissed by the Trust, initially in her written application form which
states “In this action please give your reasons for applying for this post” and
subsequently, on 25 November 2013 itself, when she was asked by Ms 4 why she was
seeking work at a level lower than that of a Band 7 Nurse.
The panel accepted Ms 4’s evidence that knowledge that Mrs Bratby had been
dismissed by the Trust would have affected the decision to offer her employment. The
panel determined that Ms 4 was misled as a consequence of Mrs Bratby’s omission and
that the omission was intentional.
Having reached the conclusion that Mrs Bratby had knowingly misled Ms 4, as alleged,
the panel then considered how ordinary and honest nurses would view Mrs Bratby’s
conduct. The panel satisfied itself that, given a nurse’s professional duty to be open and
honest at all times, ordinary and honest nurses would conclude that Mrs Bratby’s
conduct was dishonest.
The panel then considered whether Mrs Bratby must have known herself that her
conduct was dishonest according to the standards of ordinary and honest nurses.
In the panel’s judgment, Mrs Bratby’s response was not open and honest because, in
presenting her reasons for seeking employment, she omitted to disclose that she had
been dismissed by the Trust. The Code makes clear that a registrant is personally
accountable for their actions and omissions. Bearing in mind her duty to adhere to the
standards set out in the Code as well as to her experience and seniority as a registered
nurse, the panel was satisfied that Mrs Bratby would have realised that her conduct in
misleading Ms 4 by not disclosing that she had been dismissed by the trust was
dishonest according to the standards of ordinary and honest nurses.
The panel concluded that it was reasonable to infer, on the basis of Mrs Bratby’s
experience and seniority as a registered nurse, that she would be likely to be aware that
disclosing to Ms 4 that she had been dismissed for gross misconduct involving receipt
of pay for hours she had not worked over a significant period of time would be likely to
seriously undermine her prospects for securing employment with Facilitate Care
Services Limited. In the panel’s judgment, this would have provided Mrs Bratby with a
real motive for concealing the fact of her dismissal.
Determination on Misconduct and Impairment [04 February 2016]: In considering the issues of misconduct and current impairment the panel had regard to
all of the relevant evidence available to it. It had regard to the submissions made by Ms
Fung. Ms Fung submitted that the facts amount to misconduct. She referred the panel to the
2008 edition of the NMC document: “The code Standards of conduct, performance and
ethics for nurses and midwives” (the Code) and, in particular, to elements of the
preamble and to specific paragraphs of the Code which she said Mrs Bratby had
breached. Ms Fung invited the panel to determine that Mrs Bratby’s departures from the
standards set out in the Code were serious and that her fitness to practise is currently
impaired by reason of misconduct.
The panel accepted the advice of the Legal Assessor as to the approach it should adopt
when considering the issues of misconduct and impairment. The panel engaged in a
two stage process. It first determined whether or not the facts found proved amounted
to misconduct. It noted that there is no burden or standard of proof to be applied at this
stage and that the question of whether Mrs Bratby’s fitness to practise is currently
impaired is an issue for the exercise of its independent judgment.
The panel took account of the Legal Authorities to which it was referred, namely:
Roylance v General Medical Council [1999] UKPC 16; Doughty v General Dental
Council [1987] 3 AER 32; Nandi v General Medical Council [2004] EWHC (Admin);
Meadows v General Medical Council [2006] EWCA Civ 1390; Cohen v General Medical
Council [2008] EWHC 581 (Admin); and Council for Healthcare Regulatory Excellence
and Nursing and Midwifery Council v Grant [2011] EWHC 927 (Admin).
In the case of Roylance Lord Clyde said that:
‘Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required by a [nursing] practitioner in the particular circumstances...’
The panel therefore took account of the 2008 edition of the NMC document, “The code
Standards of conduct, performance and ethics of nurses and midwives” (‘the Code’).
The panel found the following extracts from the preamble to the Code were engaged in
this case:
‘The people in your care must be able to trust you with their health and wellbeing. To justify that trust, you must:
• be open and honest, act with integrity and uphold the reputation of your profession.
As a professional, you are personally accountable for actions and omissions in your practice, and must always be able to justify your decisions. ... Failure to comply with this code may bring your fitness to practise into question and endanger your registration.’
The panel found other elements of the Code were engaged in this case as follows:
‘You must work with colleagues to...maintain the safety of those in your care.’ [paragraph 22 of the Code] ‘You must not abuse your privileged position for your own ends.’ [paragraph 57 of the Code]
‘You must uphold the reputation of your profession at all times.’ [paragraph 61 of the Code]
The panel noted that not every instance of falling short of that which would reasonably
be expected in the circumstances, nor a breach of professional standards, will, in
themselves, necessarily constitute misconduct sufficiently serious that it can properly be
described as misconduct going to a nurse’s fitness to practise. Rule 31 (7)
makes this clear, stating:
‘Where the Conduct and Competence Committee finds that a registrant has failed to comply with the standards established by the Council under article 21 (1) (a) of the Order and set out in the Code such failure – (a) may be taken into account by the Committee in determining whether or
not that registrant’s fitness to practise is impaired; and (b) shall not, of itself, be taken to establish that the registrant’s fitness
to practise is impaired.’
In the case of Doughty, Lord McKay stated:
‘...what is now required is that the General Dental Council should establish
conduct connected with the profession in which the dentist concerned has fallen
short, by omission or commission, of the standards of conduct expected among
dentists and that such failing short as is established should be serious.’
In the case of Meadows, Lord Justice Auld said:
‘As to seriousness, Collins J, in Nandi v General Medical Council [2004] EWHC
(Admin), rightly emphasised, at paragraph 31 of his judgment, the need to give it
proper weight, observing that in other contexts it has been referred to as
“conduct which would be regarded as deplorable by fellow practitioners”’.
It follows from the above that for the purpose of these proceedings misconduct requires
a serious departure from the standards expected of a registered nurse, involving
conduct that can properly be described as ‘misconduct going to fitness to practise’ and
or conduct which would be regarded as ‘deplorable’ by other nurses.
The facts found proved as they relate to Mrs Bratby’s employment at the Trust involve
repeated instances of dishonest conduct which Mrs Bratby committed over a prolonged
period of time and which the panel concluded she undertook in order to procure a
significant financial advantage for herself. At the time, Mrs Bratby was a senior nurse
and so ought to have conducted herself as a role model for junior colleagues. In fact,
her very seniority may have assisted her in perpetrating her dishonesty which was, in
the panel’s view, a serious abuse of her position of trust.
The facts found proved as they relate to Mrs Bratby’s failure to disclose to Facilitate
Care Services Limited that she had been dismissed by the Trust involve a further
episode of dishonest conduct, albeit by omission rather than by commission, which the
panel also concluded was designed to secure a financial advantage, namely
employment.
The panel is satisfied that, individually and collectively, the facts proved represent
serious departures from the standards expected of a registered nurse. The panel had
no doubt that Mrs Bratby’s acts and omissions would be considered ‘deplorable’ by
fellow professionals and for these reasons constitute misconduct.
The panel then went on to consider whether Mrs Bratby’s fitness to practise is currently
impaired by reason of her misconduct. In considering the issue of impairment, the panel
had regard to all the relevant information available to it.
Neither the Nursing and Midwifery Order nor the Rules define what is meant by
impairment of fitness to practise. The Nursing and Midwifery Council considers that the
concept of ‘fitness to practise’ refers to a registrant’s suitability to remain on the Register
without restriction. In deciding the matter of current impairment, the panel exercised its
independent judgment.
The purpose of these proceedings is not to punish the practitioner for past failings but to
protect the public against the acts and omissions of those who are not fit to practise and
to maintain public confidence in the profession and the regulatory process. The panel
thus looks forward not back. However, in order to form a view as to Mrs Bratby’s
suitability to practise without restriction today, the panel took account of the way in
which she has acted and/or failed to act in the past.
Applying Dame Janet Smith’s test from her Fifth Shipman report, cited with approval by
Mrs Justice Cox in the case of Grant v NMC, the panel considered whether Mrs Bratby’s
misconduct indicates that her fitness to practise is currently impaired in the sense that
she:
• has in the past and/or is liable in the future to put patients at unwarranted risk of harm; and/or,
• has in the past brought and/or is liable in the future to bring the [nursing]
profession into disrepute; and/or,
• has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the [nursing] profession; and/or
• has in the past acted dishonestly and/or is liable to act dishonestly in the future.
The panel noted that the facts of this case do not raise concerns about a deficiency in
Mrs Bratby’s clinical skills nor is any criticism made of the quality of care she provided to
any patient.
However, the panel was satisfied that Mrs Bratby’s actions in failing to complete her
shifts had the potential to put patients at unwarranted risk of harm. In coming to this
conclusion the panel considered Mrs Bratby’s Band 7 position the Trust’s Children’s
Emergency Department. On Mrs Bratby’s own case, as recorded in the notes of the
local investigatory meeting dated 22 May 2013, she claims at times to have attended
work two hours early and to have left correspondingly early. Notwithstanding her
assertion that she never did anything that would impact on patient safety, in the panel’s
judgment, the potential vulnerability of the patient cohort, and the unpredictability of the
case-load meant that Mrs Bratby could never be confident that leaving a shift early,
something she did on a number of occasions, would not result in the Department being
short-staffed and patient care being compromised as a consequence.
In the panel’s judgment, Mrs Bratby’s misconduct involved breaching fundamental
tenets of the profession, namely her duty to act with honesty and integrity at all times
and, in so doing, will have brought the profession into disrepute. The nature and extent
of Mrs Bratby’s repeated dishonesty will have undermined public confidence in the
profession.
The panel next considered whether Mrs Bratby is liable to repeat misconduct of the kind
found proved. In so doing the panel also considered whether her misconduct could be
easily remedied and if it had been remedied. In assessing the question of the risk of
repetition, the panel also had regard to the issue of insight.
In the case of Cohen, Mr Justice Silber said:
‘...when fitness to practice is being considered, the task of the Panel is to take account of the misconduct of the practitioner and then to consider it in the light of all the other relevant factors known to them in answering whether by reason of the [nurse’s] misconduct, his or her fitness to practice has been impaired...the fact that stage 2 is separate from stage1 shows that it was not intended that every case of misconduct found at stage1 must automatically mean that the practitioner's fitness to practice is impaired.
There must always be situations in which a Panel can properly conclude that the act of misconduct was an isolated error on the part of a medical practitioner and that the chance of it being repeated in the future is so remote that his or her fitness to practice has not been impaired.
It must be highly relevant in determining if a doctor's fitness to practice is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated.’
Misconduct involving dishonesty is often said to be less easily remedied than other
kinds of misconduct, because it may reflect an attitudinal problem. Remediation of such
misconduct is certainly difficult to demonstrate and Mrs Bratby has provided the panel
with no information to indicate what steps she may have taken to try to remedy her
misconduct, although this is hardly surprising given her position in relation to the
charges. However, the panel accepted that whilst an admission to the facts may often
be an important way to demonstrate insight, it is not a prerequisite. In the panel’s
judgment, it should be possible for a registrant to maintain they did not do that which is
alleged at the same time as accepting that if they had done so, then those actions
would have been wrong and also to demonstrate an understanding of why that would
be. Mrs Bratby has not done any of this. Nevertheless, the panel concluded that the
nature and extent of her dishonesty was a factor relevant to the risk of repetition.
Mrs Bratby’s misconduct in failing to complete various shifts between 16 July 2011 and
09 March 2013; acting dishonestly in relation to receiving payment for hours she knew
she had not worked; knowingly misrepresenting that she was entitled to authorise her
own bank shifts; and, authorising shifts prior to completing them and in the knowledge
that they had not been completed was sustained over a long period. It follows, in the
panel’s judgment, that Mrs Bratby’s dishonesty could not be described as out of
character. Furthermore, this was dishonesty intended to secure a financial advantage
and in which Mrs Bratby was engaged, in part at least, by virtue of her position of trust
as a Band 7 Registered Nurse. The fact that, having been dismissed for gross
misconduct by the Trust, Mrs Bratby then went on to act dishonestly again, by not
disclosing that matter when seeking employment with Facilitate Care Services
underlined the panel’s assessment that Mrs Bratby’s behaviour suggests she is not a
generally honest person who, unusually, has acted dishonestly.
The panel has received no evidence from Mrs Bratby which demonstrates any insight.
She has made no apology nor expressed any remorse. She has provided the panel with
nothing that suggests any recognition of the possible effect her conduct, in failing to
complete her shifts, might have had on her colleagues or the risks to patient safety
when the Department was short staffed because she had left early. Mrs Bratby has
provided the panel with nothing that suggests she understands how the public might
view a nurse of her seniority repeatedly acting as she has done.
In the light of the lack of any cogent information from Mrs Bratby upon which it could
rely to conclude otherwise, the panel determined for all the above reasons that there
remains a significant risk that Mrs Bratby may repeat her misconduct thereby once
again breaching fundamental tenets of the profession and bringing the profession into
disrepute. Indeed, in the panel’s judgment the repeated nature of Mrs Bratby’s past
misconduct, the fact that after being dismissed she went on to act dishonestly again,
coupled with the absence of any evidence of remediation, insight and remorse, increase
the likelihood that she would repeat her misconduct.
Accordingly, the panel determined that Mrs Bratby’s fitness to practise is currently
impaired by reason of her misconduct.
Having reached this conclusion the panel also had regard to paragraph 74 of
Mrs Justice Cox’s ruling in the case of Grant v NMC as follows:
“In determining whether a practitioner’s fitness to practise is impaired ... the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.”
The panel was satisfied that, having regard to the nature of the misconduct, the “need to
uphold proper professional standards and public confidence in the profession” would be
undermined if a finding of impairment were not made in the particular circumstances of
this case.
Determination on Sanction [04 February 2016]: This determination should be read in conjunction with the panel’s previous
determinations.
Having found that Mrs Bratby’s fitness to practise is currently impaired by reason of her
misconduct, the panel considered what sanction, if any, should be imposed in respect of
her registration.
The panel had regard to all of the relevant information available to it at this stage of the
hearing. Ms Fung adduced no further evidence at this stage and the panel has received
no further information from Mrs Bratby for it to consider at this stage.
The panel took account of Ms Fung’s submissions. She reminded the panel that the
NMC’s main objective is the need to protect the public and the wider public interest,
which includes the maintenance of public confidence in the profession and the
regulatory process. She submitted that this should be the main focus of the panel’s
approach to the question of sanction. She further reminded the panel that the purpose
of a sanction was not the punishment or the rehabilitation of the registrant. Ms Fung
invited the panel to consider the aggravating and mitigating features of the case.
The panel accepted the advice of the Legal Assessor. It had regard to the legal
authorities to which it was referred, namely: Giele v General Medical Council [2005]
EWHC 2143 (Admin) and Parkinson v Nursing and Midwifery Council [2010] EWHC
1898 (Admin).
The decision as to what sanction, if any, to be imposed is a matter for the panel’s
independent judgment. The panel applied the principle of proportionality, weighing the
interests of the public with those of Mrs Bratby. It had regard to the NMC’s Indicative
Sanctions Guidance (ISG) document but noted, as that document and the case law
cited within it makes clear, that:
• each case will depend on its own facts;
• the ISG is guidance and is not to be regarded as laying down a rigid tariff.
The panel considered the sanctions available in ascending order of severity. It noted
that it must impose the least restrictive sanction necessary to protect patients and
maintain public confidence in the profession and the NMC as its regulator. The panel
had in mind that the purpose of imposing a sanction is not to be punitive, although some
sanctions may have punitive effects.
The panel had regard to the specific section of the ISG which addresses the issue of
dishonesty. It states:
‘Dishonesty, even where it does not result in direct harm to patients but is related
to matters outside of a nurse or midwife’s professional practice, for example,
fraudulent claims for monies, is particularly serious because it can undermine the
trust the public place in the profession. Honesty, integrity and trustworthiness are
to be considered the bedrock of any nurse or midwife’s practice.’
The panel noted the ruling of Mr Justice Mitting in the case of Parkinson. He said:
“A nurse found to have acted dishonestly is always going to be at severe risk of
having his or her name erased from the register. A nurse who has acted
dishonestly, who does not appear before the Panel either personally or by
solicitors or counsel to demonstrate remorse, a realisation that the conduct
criticised was dishonest, and an undertaking that there will be no repetition,
effectively forfeits the small chance of persuading the Panel to adopt a lenient or
merciful outcome and to suspend for a period rather than direct erasure.”
The ISG makes clear that Mr Justice Mitting’s ruling in Parkinson does not mean that in
cases of dishonesty panels are ‘left with an arbitrary choice between suspension and
striking-off, or that in the absence of special circumstances a striking-off order is to be
seen as a default outcome’ but demonstrates that ‘dishonesty is a highly serious matter
and that a striking-off order will almost always be a possible outcome.’
The panel had regard to the aggravating and mitigating features of the case which it
identified as relevant, as follows:
a. aggravating features:
• Mrs Bratby’s dishonesty was repeated over a prolonged period and involved
acts of commission and omission;
• Mrs Bratby’s dishonesty was undertaken to obtain a significant financial
advantage and succeeded in that aim;
• Mrs Bratby’s seniority assisted her in abusing her position of trust;
• repeated dishonesty is evidence of a serious attitudinal problem;
• Mrs Bratby’s misconduct involved serious departures from the professional
standards required of a registrant and breaches of the fundamental tenets of
the profession;
• Mrs Bratby has not demonstrated any insight or shown remorse;
• Mrs Bratby has not remedied her misconduct;
• there is a significant risk of repetition;
• vulnerable patients were placed at potential risk through the Department
being short-staffed;
• Mrs Bratby has only engaged with the NMC regulatory process to a very
limited extent.
b. mitigating features:
• Mrs Bratby has no previous adverse NMC regulatory history;
• Mrs Bratby engaged with the NMC and the Trust’s local disciplinary process
to a limited degree;
• there are no concerns about Mrs Bratby’s actual clinical practice;
• there is some evidence of difficult personal circumstances.
In the panel’s judgment, the aggravating features significantly outweigh the mitigating
features of this case. In coming to this conclusion the panel noted that Mrs Bratby has
had an opportunity to clarify her personal circumstances at the time of her misconduct.
The notice of hearing letter sent to Mrs Bratby specifically invited her to provide the
NMC with evidence in mitigation that would be presented to the panel even if she
decided against attending the hearing in person. For whatever reason, Mrs Bratby has
not availed herself of that opportunity.
The panel first considered but rejected taking no action. In coming to this view, the
panel had in mind the seriousness of the misconduct and the need to satisfy the public
interest and uphold public confidence in the profession and the regulatory process.
The panel next considered a Caution Order. That is the least restrictive sanction. It does
not constrain a registrant’s ability to practise but is recorded on the NMC Register and is
published on the NMC’s website. It can be imposed for any period between one and five
years.
The ISG makes clear that a Caution Order may be appropriate where the case is “at the
lower end of the spectrum of impaired fitness to practise” and “where the panel wishes
to mark that the behaviour was unacceptable and must not happen again.” The ISG
also states that such an order “might be appropriate” when “the registrant’s history is
such that the panel is confident that there is no risk to the public or to patients which
requires the registrant’s practice rights to be restricted.”
The panel determined that Mrs Bratby’s misconduct was not “at the lower end of the
spectrum of impaired fitness to practise”. It involved repeated dishonesty undertaken to
secure a personal financial advantage, an abuse of power and breaches of the
fundamental tenets of the profession. There is a risk of repetition. In the panel’s
judgment, a Caution Order would not be sufficient as it would not protect the public nor
would it satisfy the public interest.
The panel next considered, but rejected, imposing a Conditions of Practice Order.
In the panel’s judgment, Mrs Bratby’s repeated dishonesty constitutes evidence of a
deep-seated attitudinal problem in relation to the discharge of her professional
responsibilities. The panel determined that Conditions of Practice could not be
formulated to address the misconduct in this case which would also maintain public
confidence in the profession and the regulatory process. A more restrictive sanction is
required given the scope and nature of Mrs Bratby’s misconduct.
The panel went on to consider imposing a Suspension Order. Such an Order is
intended to convey a message to the registrant, the profession and the wider public
regarding the gravity of unacceptable and inappropriate behaviour and as to the
importance of maintaining and upholding proper standards of professional conduct. A
Suspension Order may be imposed, for up to one year, where, in the particular
circumstances of the case, the behaviour being considered falls short of being
fundamentally incompatible with continued registration.
The panel considered that the following were particularly relevant to consideration of the
appropriateness of a Suspension Order:
• the misconduct was not a single instance;
• there is evidence of a harmful deep-seated attitudinal problem;
• Mrs Bratby has not demonstrated any insight;
• there is a significant risk of repetition.
In these circumstances, a Suspension Order, even if imposed for the maximum period
allowed, would be insufficient to maintain public confidence in the profession and
address the serious and repeated nature of Mrs Bratby’s dishonesty.
Having rejected a Suspension Order as insufficient, the panel had regard to the ISG in
relation to a Striking-Off Order.
The ISG makes clear that a Striking-Off Order is the appropriate sanction where the
behaviour is fundamentally incompatible with being a registered nurse and where the
behaviour involves any of the following:
• serious departures from the relevant professional standards;
• abuse of position of trust;
• dishonesty, especially where persistent or covered up;
• a persistent lack of insight into the seriousness of the registrant’s actions or the consequences of those actions.
In the panel’s judgment, each of the factors set out above apply to the current case. Mrs
Bratby’s misconduct involved serious departures from the professional standards
required of a registered nurse and breaches of the fundamental tenets of the profession.
Mrs Bratby’s dishonesty was sustained over a prolonged period and involved a serious
abuse of her position of trust. Repeated dishonesty over such a period is indicative of a
serious deep-seated attitudinal problem. In addition, vulnerable patients were put at risk.
Mrs Bratby has not demonstrated any insight despite having had a significant period in
which to reflect.
A vital consideration for the panel was whether the case required a Striking-Off Order or
whether applying proportionality, public confidence could be maintained by imposing a
lesser sanction.
Mrs Bratby repeatedly breached the standards of conduct, behaviour and ethics to
which, as a registered nurse, she was required to adhere at all times. She has not
remedied her misconduct. She has shown no insight. She has not offered an apology or
a commitment as to her future behaviour. She is at risk of repeating her misconduct.
In the panel’s judgment, members of the public would be affronted by Mrs Bratby’s
misconduct. Given that honesty is the bedrock of a nurse’s practice, public confidence
in the profession and the regulatory process would be undermined if she was allowed to
retain the privileges of registration, since that would require her adherence to the
professional tenets and standards she has seriously and repeatedly breached.
For all of the above reasons, the only proportionate and appropriate sanction in this
case, sufficient to satisfy the public interest and maintain confidence in the profession, is
a Striking-Off Order.
In coming to this conclusion, the panel applied the principle of proportionality. It
balanced Mrs Bratby’s interests in being able to continue in her career as a registered
nurse and the possible effect on her of a Striking-Off Order with the need to protect the
public and maintain public confidence in the profession. Notwithstanding how this
decision may affect Mrs Bratby, the panel found her interests were outweighed by the
public interest.
Accordingly the panel therefore directs that Mrs Bratby’s name be removed from the
NMC Register. She may not apply for restoration until five years after the date that this
decision takes effect.
Right of Appeal:
Mrs Bratby will have 28 days from the date when written notice of the result of this
hearing is deemed to have been served upon her in which to exercise her right of
appeal. Mrs Bratby will be provided with a note explaining her right of appeal. Unless
Mrs Bratby exercises that right, the direction imposing a Striking-Off Order for a period
of six months will take effect 28 days from when written notice of the decision is deemed
served upon her.
Determination on Interim Order [04 February 2016]: Having already determined to impose a Striking-Off Order, the panel has now also
decided to impose an Interim Suspension Order for a period of 18 months and directs
the Registrar accordingly.
In reaching its decision, the panel applied the principle of proportionality.
Ms Fung sought an Interim Suspension Order for 18 months to cover Mrs Bratby’s
statutory 28 day appeal period and the duration of any appeal which might be made. Ms
Fung submitted that an Interim Suspension Order is necessary for the protection of the
public and is otherwise in the public interest, so as to maintain public confidence in the
profession.
The panel accepted the Legal Assessor’s advice.
The panel noted that an interim order could only be made on one or more of three
grounds, namely that:
• it is necessary for the protection of the public:
• it is otherwise in the public interest; and/or
• it is in the registrant’s own interest.
The panel concluded that an Interim Order is necessary for the protection of the public,
including patients and Mrs Bratby’s professional colleagues, and furthermore, is
otherwise in the public interest.
In coming to its conclusion the panel had regard to its findings that Mrs Bratby had
breached the fundamental tenets of the profession, abused her position of trust, had not
remedied her misconduct, had no insight and that there was a significant risk of
repetition. It also took account of its conclusion that the only substantive sanction
sufficient to protect the public and the wider public interest is a Striking-Off Order.
The panel also had no doubt that public confidence in the profession and the regulatory
process would be undermined if Mrs Bratby were allowed to practise prior to the
substantive order taking effect given the particular circumstances of this case.
The panel then considered what type of Interim Order should be imposed. In
accordance with the principle of proportionality the panel determined to impose the least
restrictive order appropriate to the circumstances of the case.
The panel first considered an Interim Conditions of Practice Order. It decided such an
Order would be inconsistent with its earlier findings and so would be perverse. The
panel is satisfied that an Interim Suspension Order is necessary, appropriate and
proportionate in the circumstances of this case.
In coming to its conclusion, the panel had regard to the fact that this Interim Suspension
Order will prevent Mrs Bratby from working as a Registered Nurse and this may cause
her financial and professional hardship. However, applying the principle of
proportionality, the panel determined that her private interests were outweighed, both by
the need to protect the public and the wider public interest, in particular the need to
maintain public confidence in the profession and the NMC as the Regulatory Authority.
The period of this Interim Suspension Order is 18 months. In coming to its conclusion
that 18 months is the appropriate period, the panel had regard to the length of any
appeal process, noting that this includes the time likely to elapse before any appeal is
listed.
If there is no appeal, this Interim Suspension Order will lapse at the end of the appeal
period, when the panel’s substantive Striking-Off Order takes effect. In the event that an
appeal is lodged but concluded before the expiration of 18 months, this Interim
Suspension Order will lapse at the conclusion of the appeal. If an appeal is lodged but
not concluded within the period of 18 months, it will be necessary for the NMC to apply
to the High Court for an extension of this Interim Suspension Order.
In the meantime, Mrs Bratby’s entry in the NMC register will show that she is subject to
an Interim Suspension Order and anyone who enquires about her registration will be
told about that Order.
The panel’s decisions in this case will be confirmed in writing.
That concludes this hearing.
