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Conduct and Competence Committee Substantive Hearing

25 – 26 August 2016 21 November 2016

Nursing and Midwifery Council (NMC), 2 Stratford Place, London, E20 1EJ

Name of Registrant Nurse: Lucia Shingirai Benyu NMC PIN: 91I3001E Part(s) of the register: Registered Nurse – Sub part 1 Mental Health Nursing -17 September 1994 Area of Registered Address: England Type of Case: Misconduct Panel Members: Robin Stephenson (Chair, Lay member)

Gillian Frame (Registrant member) Kay Grindell (Lay member)

Legal Assessor: Simon Walsh Panel Secretary: Susan Curnow Nursing and Midwifery Council: Represented by Barnaby Hone, counsel,

instructed by NMC Regulatory Legal Team. Representation: Mrs Benyu was present and not represented Facts proved by admission: 1 Facts not proved: None Fitness to practise: Impaired Sanction: Striking off order Interim Order: Interim suspension order – 18 months

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Charge as read:

That you, a registered nurse:

1) On 2 October 2014 were struck off the Roll of Solicitors by a panel of

the Solicitors Disciplinary Tribunal;

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

your misconduct

Mrs Benyu, Background

You qualified as a nurse in 1994 and worked as a Team Leader for Cavendish Court

Nursing Homes. You have continued to work in a variety of nursing roles up until

January 2015.

In 2002 you qualified as a solicitor and later practised as a sole practitioner under the

name of ‘Peters & Co Solicitors’ (the “Firm”).

On 21 July 2009, Person A, an elderly gentleman who was placed under the Court of

Protection in 1998 after being diagnosed with dementia, instructed you to act as his

solicitor.

In late 2009, Person A instructed you to make an application to the Court of Protection

on his behalf. As a result of this application Person A was released from the Court of

Protection’s Jurisdiction in January 2010. Person A’s funds were consequently released

to the firm in or around March 2010 totalling £244,710.37. You continued to represent

him and saw him regularly between this time and his death.

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Following the death of Person A on 1 May 2012, his son, Person B, requested

information from you relating to Person A’s client account in order to make an

application for Grant of Probate. On 21 June 2012, you wrote to Person B stating that

the money held by the firm in Person A’s client account was approximately £155,000.

Person B and Person C were given the Grant of Probate for Person A’s estate in or

around July 2012 and subsequently requested all files and documents held by the firm

on Person A. Person B discovered that you had withdrawn money held in the Person

A’s client account without Person A’s authorisation.

Person B subsequently raised a complaint to the Solicitors Regulation Authority (“SRA”)

regarding your conduct whilst acting in the capacity of a Solicitor for Person A. By letter

of 29 January 2013, solicitors instructed by you submitted a “self-report” to the SRA.

On 30 January 2013, the SRA commenced an investigation into the allegations against

you, and on 6 February 2014, you referred yourself to the NMC as a result of those

investigations. The SRA Forensic Investigation into the firm was completed on 22

February 2013.

A hearing was then held on 30 September 2014 and 1 & 2 October 2014 by the

Solicitors Disciplinary Tribunal (“SDT”). On 18 November 2014 the SDT found that a

number of the allegations of dishonesty in relation to your actions were found proven.

This resulted in you being struck off the Roll of Solicitors.

You made an application to appeal the SDT decision on eight separate grounds, and

the matter was heard at the High Court on 20 November 2015. The appeal was

dismissed.

At the start of this hearing you admitted to the facts of the charge, that is that you had

been struck off the Roll of Solicitors by a panel of the SDT for the reasons they had

determined. You made no admissions at this stage as to whether your fitness to

practice was impaired.

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The panel found that the facts underlying the charge, namely that you were struck off

the Roll of Solicitors, proved by your admission. You also accepted the facts that led to

your striking off. The panel found these to be helpfully summarised by Carr J in her

judgment dismissing your appeal against the SDT findings. She said:

“5 The Appellant was formerly a solicitor practising as a sole practitioner under the

style of Peters & Co Solicitors (“the practice”) based in Essex. Before qualifying as

a solicitor in 2002, the Appellant had been a psychiatric nurse and mental health

commissioner. Upon qualifying as a solicitor, she practised exclusively in the field of

mental health.

6 The disciplinary proceedings arose primarily, though not exclusively, out the

Appellant’ dealings with one her clients, [Person A], an 84 year old man, who was

under the Court of Protection (“COP”), due to his lack of mental capacity as a result of

a persistent delusional disorder.

7 [Person A] told the Appellant on at their first meeting on 21 July 2009 that he had

been under the COP since 2002. He had made a number of unsuccessful applications

to be discharged from it. He asked the Appellant for assistance to obtain a discharge

from the COP. On the Appellant's own evidence he promised her at that first meeting

that, if discharged, he would make sure that she was “well looked after.”

8 His approximate words were, on her evidence:

i. “I will make sure that you are well looked after. I cannot say much, but I will let you

see. You wait.”

9 The Appellant completed the appropriate application form and [Person A] signed it

there and then on 21 July. The discharge application required [Person A] to undergo

a medical assessment as to his mental capacity. The Appellant identified a junior GP,

a Dr Osman, who carried out an assessment on 5 December 2009, by which time

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the Appellant had already filed the discharge application some months earlier. I have

been shown a copy of Dr Osman's report dated 5 December 2009, although it was

not in evidence before the SDT.

10 The application to be discharged was successful. A restoration order was made

on 20 January 2010, discharging [Person A] from the supervision of the COP. Upon

his discharge (perhaps because he did not have a bank account), [Person A]'s entire

life savings in the sum of approximately £240,000 were transferred by the Deputy

(previously appointed by the COP to manage [Person A]'s affairs) to the Appellant's

practice.

11 Thereafter, between June 2010 and June 2011, all but a few thousand pounds of

[Person A]'s savings were transferred to the Appellant, or her practice.

12 The first £70,000 was allegedly transferred pursuant to a “gift” which [Person A]

had allegedly promised to the Appellant at a meeting of 26 February 2010.

13 Although promised in February, she did not in fact take it until June 2010, and then

in three separate instalments of £20,000, £30,000 and £20,000 taken on 8, 11 and 29

June respectively.

14 The “gift” coincided with a period in which the practice was experiencing financial

difficulties. For example, the transfer of the £20,000 on 29 June 2010 enabled the

practice to pay staff wages the following day without exceeding the practice overdraft

limit.

15 Before taking a gift from a client, a solicitor is under a professional obligation to

ensure that the client takes independent legal advice but, if the client refuses to do so,

the solicitor is not permitted to continue to act. The rule, at the relevant time Rule 3.04

of the Solicitor's Code of Conduct 2007, allows for no exceptions.

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16 The Appellant's evidence to the SDT was that she was aware that a rule existed

dealing with the giving of gifts. She claimed to have been referred to the relevant rule

when she had allegedly contacted the Respondent’s ethics' hotline to discuss the

“gift”. Her evidence was that, although aware that a rule existed, she had not taken

the time to read it, and nor had the rule been properly explained to her by the

adviser on the ethics' hotline. The SDT in due course rejected this part of the

Appellant's evidence as simply “incredible”.

17 On her evidence, the Appellant advised [Person A] to take legal advice and even

went to so far as to send him a consent form to sign, confirming that he had given the

“gift” willingly and without duress. However, she said that [Person A] was “adamant”

that he wanted to give the “gift” and did not want independent legal advice. She

claimed that in those circumstances she believed that she was entitled to accept the

monies.

18 Aside from this payment of £70,000, between July 2010 and June 2011, £170,000

of [Person A]'s life savings was also transferred and used at least partly in order to

support the practice's cashflow. Those monies were transferred pursuant to an

alleged loan from [Person A], a loan which, on the Appellant's own case, was

unlimited in amount, was unsecured, was not recorded in writing, and contained

no terms in relation to repayment or interest. In her evidence in cross-examination,

the Appellant confirmed that she would never have advised any client to enter into

such a loan.

19 The loan was entered into by [Person A] without the benefit of independent legal

advice, as the Appellant well knew, and on the Appellant's own evidence, other than

the first £30,000 of the loan which she claimed to have told [Person A] about,

[Person A] was entirely unaware as to how much of his money the Appellant

had “borrowed” from him.

20 Indeed, on the Appellant's evidence, [Person A] did not know that she had

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borrowed all but the entirety of his life savings and nor was he aware that the practice

was struggling financially, with the result that the Appellant would inevitably struggle

to repay his money to him, whether promptly or at all.

21 Following [Person A]'s death, when confronted by his two sons in relation to her

dealings with their late father, some £154,000 was transferred from a different client

ledger to [Person A]'s ledger. Transfer was from the estate of a deceased, Mr [D],

whose beneficiary was a Mrs [E], who lacked mental capacity.

22 The Appellant went on to provide [Person A]'s sons with a false ledger, which

made no reference to any of the alleged loan transfers. She provided [Person A]'s

sons with a copy of a letter dated 11 April 2010 from her to [Person A]. The SDT

found that she had in fact doctored that letter by inserting a paragraph relating to the

“gift”, which paragraph had not appeared in the original version of the letter later

discovered amongst [Person A]’s papers at his home.

23 In addition to the allegations concerning the affairs of [Person A], there was one

allegation concerning a different client, a Mr [F], who also lacked mental capacity.

The practice had transferred approximately £30,000 of his money to the office

account, thus enabling staff wages to be paid.

24 The Respondent made a number of serious allegations against the Appellant

arising out of her conduct relating to these matters. The Appellant admitted the

majority of the allegations of the allegations of the breaches of the Solicitors' Code

of Conduct, but denied creating misleading or false documents and critically

denied acting dishonestly.

25 At the hearing before the SDT she gave evidence and was cross-examined for

some one and a half days. Applying the criminal standard of proof (as it was obliged

to) the SDT found all of the allegations against her proved, including that she had

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acted dishonestly on certain counts. She was struck off the Roll of Solicitors, as

already indicated.”

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Determination on misconduct and impairment

Having announced its finding on the facts, the panel then moved on to consider whether

the facts found proved amount to misconduct and, if so, whether your fitness to practise

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

suitability to remain on the register unrestricted. When determining whether the facts

found proved amount to misconduct the panel also had regard to the terms of The

Code: Standards of conduct, performance and ethics for nurses and midwives 2008

(“the Code”). In coming to its determination the panel has exercised its own

independent judgement.

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

must determine whether the facts found proved amount to misconduct. Secondly, only if

the facts found proved amount to misconduct, the panel must decide whether, in all the

circumstances, your fitness to practise is currently impaired as a result of that

misconduct.

The panel had already read carefully

a) The SDT decision dated October 2014, the judgment of Carr J on your appeal

and your “Response to Charges”. These documents were provided by the NMC.

b) The various documents you provided include the nine documents specifically

referred to by you yesterday

• Your self- report to the Solicitors Regulating Authority dated 29 January 2013

• Recommendation Report from the Legal Ombudsman dated 29 May 2013

• Your response and personal statement for the NMC dated 26 January 2016

• Your CV and live-in Care Worker Job Description

• The testimonials you provided from colleagues and your current employer

• A letter from Gary Christianson to the SRA on behalf of your former husband

dated 11 November 2013

• Your statement to the SRA

• Your SDT statement

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• Your compliance plan

The panel also heard oral evidence from you under oath.

You said that you would like to apologise for bringing the nursing profession into

disrepute by virtue of your actions as a solicitor. You told the panel that you had abused

a position of trust, that trust being placed in you by an elderly and vulnerable client. You

told the panel that you were aware of the Code of Conduct for Solicitors – but unaware

of the circumstances in which you could and could not accept gifts from clients. You

accepted that you were responsible for the dishonesty cited and, although there were a

number of issues regarding the finances of the firm of which you were not aware, you

have learnt from the experience.

The panel referred you to your “response to charges” which you said you wrote on 27

July 2016; in particular your assertion that “The registrant submits that the behaviour

and the charges at hand may fall under the umbrella of not being remediable. However,

the registrant asserts that the behaviour or the incidences are not linked to the

registrant’s nursing career. Although it has been stated that the behaviour is

transferrable, the registrant submits that it is not.”

You told the panel that you are now clear that your general conduct as a solicitor is

linked to your general conduct as a nurse, although your clinical conduct as nurse has

never been questioned. You now accept that behaviours are transferable from one

profession to another.

In response to a question from the panel regarding what the public would think of you

working with vulnerable people after having been struck off the Roll of Solicitors for the

reasons you were, you said that, without knowing the facts, the public would consider it

inappropriate. However, you added that someone who knew the facts “and knew [you]

as a person or worked with [you] might be willing to give [you] a chance.”

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In relation to professional boundaries, you said it was important that these are

maintained and that you now have safeguards in place to ensure this. You admitted

there were conflict of interest issues in relation to Person A. You had a lot of emotional

and personal problems clouding your judgment at the time. You did not recognise these

when they occurred but now you would and you said that in future you would seek

support and rely on guidelines and professional support systems available. You told the

panel that you were “proud” that you had repaid all the monies owing to your clients

prior to closing your solicitors’ practice; although the panel felt that this was the very

least you could do in the circumstances and is not something you should take pride in.

You told the panel, when questioned in relation your CV, that you have worked

continuously as a nurse throughout your career. When working as a solicitor you spent

equal time working as a nurse. You told the panel that, moving forward, you are more

self-aware and conscious of managing stress and you would seek support in future.

You told the panel you would like to return to nursing practise and work within an

organisation, and as part of a team. You are committed to nursing and enjoy working as

a nurse. You told the panel that you are currently working as a healthcare assistant

through an agency in a range of caring roles including live-in carer for vulnerable elderly

people. You have said you have applied for a job as a Band 5 nurse on a psychiatric

ward at Oaktree Manor through that agency (Partnerships in Care) and they have

offered you a job subject to the outcome of this hearing.

Submission on misconduct and impairment:

In his submissions, which were helpfully provided in writing and expanded upon orally,

Mr Hone invited the panel to consider that the findings of the SDT, confirmed by the

High Court, amount to misconduct. He submitted that having been struck off the Roll of

Solicitors by a panel of the SDT on the 2 October 2014, your current fitness to practice

is impaired. He said that you misused the funds of a client, who was previously under

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the jurisdiction of the Court of Protection, and that in doing so you were dishonest. He

referred the panel to the case of Peckitt v GDC [2016] EWHC 1803 in which Professor

Peckitt sought to challenge the General Dental Council’s reliance on the findings of the

Medical Practitioners Tribunal Service, to prove the charge against him. In that matter,

Mr Justice Kerr stated that a disciplinary panel was entitled to do this unless there were

exceptional circumstances.

Mr Hone also submitted that your actions have brought into question your impartiality.

He recognised that you were acting as a solicitor but noted that you abused your

privileged position as a professional for your own commercial ends and did not therefore

ensure that your professional judgement was not influenced by commercial

considerations. This he submitted was comparable to paragraphs 57 and 58 of the

Code.

Mr Hone referred the panel to the case of Roylance v GMC (No. 2) [2000] 1 AC 311

which defines misconduct as a word of general effect, involving some act or omission

which falls short of what would be proper in the circumstances. He said it was the

NMC’s case that you did not act with integrity and that your actions have impugned the

reputation of the profession.

Mr Hone then moved on to the issue of impairment, and addressed the panel on the

need to have regard not only to protecting the public but also the wider public interest.

This included the need to declare and maintain proper standards and maintain public

confidence in the profession and in the NMC as a regulatory body. Mr Hone referred the

panel to the case of Council for Healthcare Regulatory Excellence v (1) Nursing and

Midwifery Council (2) Grant [2011] EWHC 927 (Admin).

Mr Hone submitted that you did not demonstrate insight at the time of the SRA’s

investigation nor in the SDT proceedings, and that any insight you have demonstrated

during these NMC proceedings is not real, but simply a result of going through this

process. He said you have not accepted that the responsibilities of caring for clients as

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a solicitor equate to those of caring for patients as a nurse. He said that during the time

Person A was your client, you were working as a psychiatric nurse, and reminded the

panel that you had specialised in vulnerable people with mental health issues in both

your professional roles.

Mr Hone referred to your oral evidence regarding aspects of supervision and submitted

that a nurse’s integrity and honesty should not rely on “people looking over my

shoulder”. He also said your contention that you did not mean to be dishonest was at

variance with what has been found by the SDT. He submitted that you have held

important roles in mental health care as well as being a solicitor and you have breached

the fundamental tenets of trust and integrity by putting yourself first. He said that your

dishonesty and lack of integrity as a solicitor took place over an extended period of time,

and rather than insight and remorse coming spontaneously from you, any disclosures

were triggered by the death of Person A and his sons’ involvement. He submitted there

remains a risk of repetition.

In your closing submissions you told the panel that you consider that you have, and

have now demonstrated, full insight into your misconduct. You said that you felt you had

full insight at an early stage and this was evidenced in your letter of self-referral to the

SRA, and that you did not breach the conditions that were imposed on your practice as

a solicitor from 2012 to 2014. You said there have been no other conduct issues raised

against you as a solicitor, and there had been no concerns raised about your nursing

practice, from the time of your registration in 1994, until you self-referred to the NMC in

2014.

You told the panel that you did not cover up anything in relation to the matters for which

you were struck off; as soon as you identified a problem you took remedial steps. You

self-reported to the SRA, you were co-operative and were trusted with a compliance

plan. You accept that your self-report to the SRA was instigated following Person A’s

death and his sons’ involvement, but you took action immediately and attempted to

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rectify the situation. No clients suffered financial loss once you had repaid the monies

owed and you felt this went towards the public confidence in your character.

You told the panel you wish to carry on your career as a nurse, and were determined to

continue your journey of remediation. You said you were sorry for all the hurt and

distress you caused to Person B and Person C and sorry for having brought the nursing

profession into disrepute by your misconduct as a solicitor.

Regarding insight, you said that you have gained full insight throughout your journey

and understand now what went wrong and how you failed in your responsibility to your

clients. You referred the panel to the paragraph in your self-referral to the SRA which

states: “It is accepted the task of running Peters and Co as sole principal has been too

much for [you]. It is accepted [you] made decisions, which lacked judgment.” You said

you understood that you made a grave mistake and you apologise for that mistake to

those concerned, and for bringing the profession into disrepute. You are ashamed of

your actions. You understand that the money offered to you by Person A (£70,000) was

“huge gift” and that you accepted it, when it was not correct to do so. You advised

Person C of the gift and told him “it was up to him.” You offered to pay the gift back.

Regarding the risk of repetition of your behaviour, you told the panel that you self-

referred to the SRA and the NMC. You said there have been no concerns about your

misconduct as a nurse or a solicitor in relation to the elderly or vulnerable during the

period when you owned the Firm. You closed the Firm as required with no breaches or

further misconduct issues being identified. You also told the panel that you did not

attend the NMC Investigation Committee hearing when the interim suspension order

was imposed on your practice because you were on holiday but subsequently you have

not challenged that decision, accepting and abiding by the restrictions placed on your

practice once you were aware of them. You said this further demonstrated insight into

your behaviour because you felt the interim order was justified. You stopped working as

a nurse as soon as you were made aware of the order imposed.

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You told the panel that you have continued to work in the caring profession, a

profession you are committed to, and you have disclosed to your employers the charges

against you. You told the panel that you appreciate the professional safeguards that are

in place regarding the nursing profession, but nevertheless accepted that is was your

responsibility to be trustworthy. You said in your capacity as a healthcare assistant, you

do have access to the funds of vulnerable clients including pre-signed cheques, and

have not broken the trust placed in you. There have been no further concerns about

your conduct. You have taken positive steps to protect the patients in your care from

abuse by other parties.

Finally you asked the panel to take into account the case of Hosny v GMC [2011]

EWHC 1355 (Admin).

Decision on misconduct

The panel accepted the advice of the legal assessor which included reference to a

number of judgments which are relevant, these included: Peckitt, Nandi v GMC [2004]

EWHC 2317 (Admin), Mallon v GMC [2007] CSIH 17 and Holton v GMC [2006] EWHC

2960 (Admin). With regard to impairment he referred the panel to Meadow v GMC

[2007] QB 462, and the case of Grant, with regard to dishonesty to the cases of

Sharma v SRA [2010] EWHC 2022 (Admin), and Parkinson v NMC [2010] EWHC 1898

(Admin)

The legal assessor also read to the panel during its deliberations the full Lawtel

headnote of the case of Hosny which includes the four grounds of appeal in that case

and gave the court’s decision on each.

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The panel, in reaching its decision, had regard to the public interest and accepted that

there was no burden or standard of proof at this stage. It exercised its own professional

judgement.

The panel has had regard to all the evidence already adduced. It also considered the

case of Hosny as you asked but did not find it to support the submissions you made.

It first considered whether the facts found proved demonstrated that there had been a

falling short from the standards to be expected of a registered nurse which was

sufficiently serious that it could properly be described as misconduct. It bore in mind the

case of Roylance v GMC (No. 2) [2000] 1 AC 311 in which Lord Clyde defined

misconduct “as a word of general effect, involving some act or omission which falls

short of what would be proper in the circumstances”.

The panel concluded that being struck off the Roll of Solicitors for dishonesty in relation

to your dealings with hundreds of thousands of pounds held by you on behalf of clients

who were vulnerable due to age and mental incapacity was something that, once your

status as a registered nurse was taken into account, clearly brought the nursing

profession into disrepute. As such your actions did fall significantly short of the

standards of personal conduct expected of a registered nurse.

You breached paragraph 61 of the NMC Code, in that by not being honest and by not

acting with integrity, albeit in your capacity as a solicitor, you failed to uphold the

reputation of the nursing profession in which you were jointly qualified and practised

concurrently. This would mean that people in your care as a nurse would not be able to

trust you with their health and wellbeing which is a fundamental tenet of the nursing

profession.

The panel noted that misconduct was not defined in the applicable statutory framework

governing the regulatory process of the NMC. The panel had regard to the cases of

Roylance, Nandi and Mallon in which it has been held that professional misconduct is

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conduct falling short of the standards of conduct expected from registrants and noted

that such falling short must be serious.

The panel was satisfied that your conduct fell far below what would be expected from a

registered nurse and represented a serious departure from the standards expected,

whether contained within the Code or not.

The panel was fully satisfied that being struck off the Roll of Solicitors for the reasons

that you were, summarised within paragraph 131 of the decision of the SDT as

“[You] had admitted a lack of integrity and had had several allegations of dishonesty

proved against [you]. The Tribunal had heard a litany of the most ruthless exploitation of

an obviously vulnerable individual and had disbelieved much of what [you] had to say

whilst giving evidence on oath” did amount to misconduct and that it would be regarded

as wholly unacceptable by fellow professionals.

The panel therefore found that in being struck off the Roll of Solicitors you did fall

seriously short of the conduct and standards expected of a nurse and that amounted to

misconduct.

Decision on impairment

The panel has exercised its own judgement in determining this issue. In considering

whether your fitness to practise is currently impaired the panel reminded itself not only

of its duty to protect patients but more specifically of its wider duty to protect the public

interest which includes the declaring and upholding of proper standards of conduct and

behaviour, and the maintenance of public confidence in the profession and the

regulatory process.

The panel had careful regard to the questions posed by Dame Janet Smith in the Fifth

Report of The Shipman Inquiry. The panel considered whether you:

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(a) had acted so as to put a patient or patients at unwarranted risk of harm;

(b) had brought the profession into disrepute;

(c) had breached one of the fundamental tenets of the profession;

(d) had acted dishonestly.

The panel determined that there are no clinical issues in this case and therefore limb (a)

is not engaged. However, the panel concluded that you have clearly brought the

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

This engages limbs (b) and (c). Dishonesty is also a factor in the reasons for which you

were struck off the Roll of Solicitors.

Being struck off the Roll of Solicitors for dishonesty over the mishandling of significant

monies belonging to a vulnerable client, brings the reputation of the nursing profession

into disrepute in much the same way that any act of significant dishonesty unrelated to

nursing practice would bring both the reputation of the profession and the nurse

involved into disrepute.

The panel next considered whether you are liable in the future to bring the profession

into disrepute. In that regard, the panel considered whether your behaviour which led to

your being struck off the Roll of Solicitors is easily remediable, whether it has been

remedied and whether it is likely to be repeated.

The panel felt compelled to consider that your actions were so serious that they

amounted to irremediable misconduct and would always give rise to the possibility of

you bringing the profession into disrepute in the future.

The panel noted that you have shown some remorse and have stated that you accept

that you have brought the profession into disrepute as a result of your actions, and

caused harm to your clients.

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However, the panel was of the view that you have yet to accept the full extent of your

dishonesty or appreciate the effect on the wider public interest. The panel considered it

was naïve of you to say that you were not aware of the standards you were required to

adhere to as a solicitor, and there was a pattern of you laying blame on others.

Bearing in mind that you still claim it was not your intention to be dishonest; the panel is

not satisfied that you do accept that you had been dishonest. Neither does the panel

accept that your self-referral to the SRA (which you relied on as demonstrating insight

into your action) was indicative of your insight at the time. Rather, the panel noted that a

complaint had been raised by one of Person A’s sons and this had provoked the self-

referral; your self-referral could not therefore be considered evidence of your own

accountability or your taking responsibility for your actions.

The panel considered that having been struck of the Roll of Solicitors and having been

through the disciplinary process of both professions should have taught you a salutary

lesson. However, there is always a possibility of similar dishonest behaviour being

repeated, but the panel considered that the likelihood of you again taking advantage of

vulnerable patients when practising as a nurse is not so great as currently to justify a

decision that your fitness to practise is impaired on this public protection or public safety

ground alone.

The panel then considered whether, in any event and following the reasoning in the

case of Grant, 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

circumstances of this case. The panel was in no doubt that it would on the very

particular facts of this case. The nature and scale of the dishonesty that led to the

striking off from the Roll of Solicitors was so serious that the confidence of the public in

the regulation of the profession would be severely undermined if the panel did not have

the power to impose a sanction to mark this. This requires a finding of current

impairment of your fitness to practise on public interest grounds.

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For all the reasons outlined above, the panel determined that your fitness to practise is

currently impaired by reason of your misconduct in being struck off the Roll of Solicitors

for the reasons that you were.

Decision on adjournment and interim order The panel was unable to conclude the hearing within the time allocated. The hearing

therefore adjourned, and it was proposed that the hearing resume on the agreed date of

21 November 2016.

At the adjournment of today’s hearing, the panel considered whether an interim order

should be imposed to cover the period until the panel reconvenes to conclude this

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

imposition of an interim order.

Mr Hone, on behalf of the NMC, made no application for an interim order.

The panel accepted the advice of the legal assessor, and therefore determined that the

imposition of an interim order was not required in this case.

The hearing resumed for one day on 21 November 2016.

Mrs Benyu, Determination on Sanction:

Having determined that your fitness to practise is impaired, the panel considered what

sanction, if any, it should impose in relation to your registration. It had regard to the

principle of proportionality, weighing your interests against the interests of public

protection and the wider public interest, which includes declaring and upholding

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standards of conduct and behaviour and maintaining confidence in the profession and

the NMC as its regulator.

You told the panel you proposed to call three witnesses to give live evidence as to your

character and insight.

Application to adduce evidence via telephone You made an application to receive the evidence of two witnesses via telephone. Rule

31 of the NMC Fitness to Practice Rules 2004, states:

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

of relevance and fairness, a Practice Committee considering an allegation may admit

oral, documentary or other evidence, whether or not such evidence would be admissible

in civil proceedings.”

You informed the panel that the witnesses you proposed to call were unable to attend in

person due to work engagements but that they would also attest to your character and

insight. One of the witnesses had provided character evidence in an undated letter to

the NMC (which had already been shown to the panel), but the other had not as he had

fully expected to attend in person until a professional engagement came up

unexpectedly.

Mr Hone on behalf of the NMC did not oppose this application.

The panel heard and accepted the advice of the legal assessor. He referred the panel to

the NMC guidance on Telephone evidence dated June 2015.

The panel considered that, in the light of the fact that the proposed witnesses had either

worked with you in your role as a solicitor, or supported you in your process of

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rehabilitation, that it would be fair to hear their evidence via telephone. Their evidence

was unlikely to be seriously disputed, and would obviously be directly relevant to the

question of sanction.

The panel therefore granted this application.

Decision on sanction:

In reaching its decision, the panel had regard to all the evidence presented and the

submissions made by Mr Hone, on behalf of the NMC, and your submissions. In

addition to the evidence provided by the three witnesses, you provided additional written

evidence including a reflective statement, a number of testimonials and character

references, training certificates, a personal development plan, and your reflections on

that personal development plan.

In his submission, Mr Hone reminded the panel of the findings of the SDT in that you

had “ruthlessly exploited Person A”, and that in their opinion you were dishonest and

had committed serious professional misconduct. He said that the public interest must be

considered as a primary concern in this case. He referred the panel to the NMC

Indicative Sanctions Guidance (ISG), particularly the following paragraphs:

“The pursuit by the Council of its over-arching objective of protecting the public

involves the pursuit of the following objectives

3.1 to protect, promote and maintain the health, safety and well-being of the

public;

3.2 to promote and maintain public confidence in the professions regulated under

this Order; and

3.3 to promote and maintain proper professional standards and conduct for

members of those professions.

…

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A number of judgments have identified and confirmed that the public interest

includes amongst other things:

13.1 protection of patients and others;

13.2 maintenance of public confidence in the professions and the regulatory

body; and

13.3 declaring and upholding proper standards of conduct and behaviour.

He submitted this case was one of the most serious because of the nature of the

dishonesty, the vulnerability of the client and the seniority of your position as a solicitor,

which all underlay the decision to strike you off the Roll of Solicitors, and must, he

considered, reflect on your practice as a nurse. Nor, he submitted, have you have

demonstrated a sufficient degree of insight or remorse. He referred the panel to the

case of Parkinson v Nursing and Midwifery Council [2010] EWHC 1898 (Admin) and

Moijueh v NMC [2015] EWHC 1999.

You referred the panel to your reflective statement dated 18 November 2016. You

provided a timeline of your misconduct as a solicitor and of the process of your self-

referral to your professional regulators. You had referred yourself to the NMC prior to

the SDT findings. You said you instructed solicitors on 12 May 2015 and that your

solicitors had recommended closing your firm.

You said you were sorry that you had jeopardised client care and trust by your

behaviour which was not acceptable as a nurse or a solicitor. You disputed Mr Hone’s

suggestions that your insight was not genuine. You invited the panel to consider the

references you have provided which explore issues of insight and the progression of

your remediation. You accepted that you had been dishonest and breached both the

solicitors’ and the nurses’ codes of conduct. You told the panel that you accepted that

your misconduct had affected the trust the public have in both professions. You

accepted you were accountable for both your nursing and legal practice.

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You told the panel that you had adhered to the conditions of practise and compliance

plans that you had been subject to in relation to your solicitor’s practice. You invited the

panel to consider a sanction which allowed you to remediate yourself in clinical practice

as a nurse and prove you are trustworthy. You said there had been no misconduct

issues or concerns about your clinical practice since you qualified in 1994. You are

working in the healthcare sector now, and have engaged fully with the NMC

proceedings.

The panel accepted the advice of the legal assessor. He referred the panel to the case

of CHRE v NMC and Leeper [2004] EWHC 1850 and R (ex p Abrahaem) v GMC [2004]

EWHC 279 and gave details from the case of Moijueh referred to by Mr Hone.

The panel took account of the NMC Indicative Sanctions Guidance (ISG). It bore in

mind that the purpose of a sanction is not to be punitive, although it may have that

effect, but rather that it is intended to protect patients and the wider public interest. In

this context, the wider public interest includes maintaining public confidence in the

profession and the NMC as its regulator, and declaring and upholding proper standards

of conduct and behaviour.

The panel took careful account of the witnesses’ evidence. Ms 7 had worked as your

secretary with you at Peters & Co Solicitors from 2009 – 2012. This was prior to the

incidents coming to light but whilst you were working on the matters that the incidents

related to. Ms 7 said that she found you “to be a professional and honest person.” As

this was not in fact the case, the panel felt it could not place great weight on Ms 7’s

judgment in this regard. Since 2012 Ms 7 had only known you socially and her

assessment of your response to the allegations and findings against you would

necessarily be more limited than if you had continued to work together in any sort of

professional capacity. Nevertheless, Ms 7 was able to say that she considered that you

were extremely remorseful for your misconduct.

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Ms 8, your sister, confirmed the contents of her written statement and told the panel that

you had developed significant insight and you were now a different person having

reflected deeply on your past misconduct. She gave her impressions purely from a

family viewpoint as, although she was herself a registered nurse, she did not say she

had ever worked with you in a professional capacity.

Mr 9 told the panel that he was a chartered accountant and also a pastor in the “Springs

of Life International Christian Centre”. He made it very clear to the panel that he was

providing a character reference only in that latter “pastoral” role where he had offered

you counselling in accordance with his Christian beliefs. He made it clear that he had no

professional qualification in counselling. He told the panel that you initially had difficulty

coming to terms regarding the proceedings and finding support. He said you had initially

lost your self-confidence and self-esteem. He told the panel that you have made a great

deal of progress in terms of self-esteem and you are repentant. You have together

discussed the consequences of your dishonesty in the context of the professions you

have worked in.

The panel carefully considered the aggravating and mitigating factors in your case.

The aggravating factors which the panel found to be present are:

• In the conduct that gave rise to being struck off the Roll of Solicitors you:

o Had abused your position of trust, and did so in your own interests.

o Took a large amount of money (over £200,000) from your clients

o You exploited a vulnerable client over a long period of time

• Your late and somewhat ambiguous acceptance that the impact of your actions is

transferable in the eyes of the public from one profession to the other

• You acted dishonestly while holding or having held a number of trusted senior

positions including a Mental Health Act Commissioner with Care Quality

Commission

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The mitigating factors which the panel found to be present are

• Your insight has begun to evolve throughout this NMC process

• You have demonstrated increasing remorse

• There is an emerging acknowledgement of the consequences and understanding

of your behaviour, and you now accept that your behaviour is transferrable

• You are an experienced and respected nurse with over 20 years of nursing

practice behind you, there have been no other referrals, and you have been

offered work as a nurse, dependent on the outcome of these proceedings

• You have engaged fully throughout the regulatory process

• You have continued to work in a healthcare setting

• You have undertaken some appropriate training

• You have provided the panel with references attesting to your skills and good

character in your current role as a healthcare worker.

The panel first considered taking no further action. The panel was satisfied that this was

not one of those rare cases where, having found impaired fitness to practise, the

appropriate step was to take no action. The panel considered that taking no action

would be wholly inappropriate given its finding that your fitness to practice was impaired

on public interest grounds alone.

The panel next considered a caution order. The panel found that your misconduct was

serious and that, in the circumstances of this case, a caution order was inappropriate.

The panel does not consider that the degree of impairment found could possibly be

considered to be at the lower end of the spectrum. A caution order would not address

the need to ensure maintaining public confidence in the profession and the NMC as its

regulator.

The panel went on to consider a conditions of practice order. It bore in mind that any

conditions imposed must be relevant, proportionate, workable and measurable. The

panel considered that the allegations against you were attitudinal and non-clinical in

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nature. The panel determined that there were no practicable conditions which could be

formulated to adequately address the issues of honesty and integrity that would

adequately protect the public interest. Therefore, the panel was not satisfied that

conditions of practice order would be appropriate.

The panel then went on to consider whether a suspension order would be an

appropriate sanction.

The panel considered that your dishonest conduct as a solicitor that led to your being

struck off the Roll of Solicitors’ involved the exploitation of a number of vulnerable and

elderly people who had placed their trust in you, and took place over a prolonged period

of time and involved significant sums of money. The panel considered that the

mitigating factors in this case were far outweighed by the aggravating factors it identified

above. The panel considered that although you have demonstrated some insight and

remorse into the serious concerns regarding your conduct, a registered nurse is

expected to be truthful and honest at all times. Thus, your behaviour demonstrated

serious departures from the standards expected of a registered nurse. Although the

panel was of the view that there is no significant risk of repetition of your dishonest

behaviour, the panel found that your conduct was so serious that it is fundamentally

incompatible with you continuing to be a registered nurse, and that the public interest

could not be satisfied by a less severe outcome than permanent removal from the

register. Accordingly, the panel considered that a suspension order would not satisfy the

public interest in the maintenance of the reputation of the profession and the regulatory

process.

In reaching this conclusion, the panel had particular regard to paragraph 72 of the ISG

and considered the following sub-paragraphs which it considered accurately reflected

the underlying motivation for the actions which resulted in the charge before the panel:

72.3 Abuse of position, abuse of trust, or violation of the rights of patients,

particularly in relation to vulnerable patients

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72.6 Dishonesty, especially where persistent or covered up

72.7 Persistent lack of insight into seriousness of actions or consequences

Given the serious issues raised in this case and the charges found proved, the panel

has concluded that confidence in the profession and its regulator, and the need to

uphold and declare proper professional standards, would be undermined if you were to

remain on the Register.

The panel has therefore determined that a striking-off order is the only sufficient and

proportionate sanction which will properly address the wider public interest.

The panel is aware that a striking-off order may have a significant detrimental financial

impact on you. You have said in your reflective statement that you are currently

experiencing financial consequences having been struck off the Roll of Solicitors and

you are currently under an interim suspension order, which must necessarily in the

panel’s view reduce your earning potential. However, no specific details of your financial

circumstances were provided to the panel and in any event the panel is of the view that

the wider public interest outweighs your personal interests for all of the reasons

identified above.

The panel therefore determined to impose a striking-off order.

Your record in the NMC register will show that your name has been removed. You may

not apply for restoration until five years after the date that this decision takes effect.

Unless subject to an appeal, this order will take effect 28 days from the date this

decision is deemed to have been served upon you.

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Determination on Interim Order

In accordance with Article 31(5) (a) of the Nursing and Midwifery Order 2001 the current

interim suspension order ceases to have effect once a panel of the Conduct and

Competence Committee reach a decision in the respect of the allegations in question.

This is today.

However, pursuant to Article 29 (11) of the Nursing and Midwifery Order 2001, this

panel’s decision will not come into effect until after the 28 day appeal period, (which

itself only commences after you have received written notification of today’s decision),

has expired, or if you appeal, until your appeal is determined. Article 31 of the Nursing

and Midwifery Order 2001 outlines the criteria for the imposition of a new interim order

to cover this period. The panel may only make an interim order if it is satisfied that it is

necessary for the protection of the public that it is otherwise in the public interest or in a

registrant’s own interest. The panel may make an interim order for a maximum of 18

months.

Mr Hone invited the panel to consider the imposition of an interim suspension order. He

submitted that an order is necessary in order to maintain public confidence in the

profession and is therefore in the public interest.

You did not oppose this application.

The panel heard and accepted the advice of the legal assessor.

The panel has concluded that an interim order is necessary on public interest grounds

only. The panel relies on its reasons for its findings of impairment of fitness to practise

and sanction for the imposition of an interim suspension order. Having determined that

a striking-off order is necessary for the maintenance of public confidence in the

profession the panel considered that public confidence would be undermined if you

were allowed to practise until the substantive order comes into effect. The panel has

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determined that the period of the interim suspension order shall be 18 months to cover

the time an appeal may take.

If at the end of the appeal period of 28 days, you have not lodged an appeal, the interim

order will lapse and will be replaced by the substantive striking-off order. On the other

hand, if you do lodge an appeal, the interim order will continue to run until the appeal is

determined or withdrawn.

That concludes this determination.