Tuesday, September 26, 2023

Mental health nurse claimed her conviction for fraud was a miscarriage of justice

Ed Madden, BL, looks at a recent England and Wales High Court case in which the Court considered the effect of a conviction for fraud on a subsequent Fitness to Practise Panel hearing

In May 2023, the England and Wales High Court delivered its judgment on an appeal by a mental health nurse against a decision of the Fitness to Practise Panel of the Nursing and Midwifery Council to strike her off the register. When the case came on for hearing, the Court was told that in April 2022, the Appellant, Neneh Fofanah, was convicted at Nottingham Crown Court on six counts of fraud. The fraud spanned a period from July 2014 until October 2015 while she was employed by the Cheshire and Wirral Hospital Trust (‘the Trust’). It took the form of ‘dishonestly making false representations for gain’.

Five of the six representations were as to fitness for work (the representations being that she was unfit for work). The other representation was as to being on compassionate leave. In short, the prosecution case was that based on those representations Miss Fofanah received payments from the Trust (in respect of sick leave and compassionate leave), while at the same time working as a ‘bank nurse’ in Derby for which she was also paid. She was sentenced to nine months’ imprisonment, suspended for 18 months; together with an unpaid work requirement of 150 hours; and a rehabilitation activity requirement of 15 days. Miss Fofanah contended that the conviction was a miscarriage of justice and that she was not guilty of fraud.

In essence, her position was that she was not dishonest, that she acted with the knowledge of her employer, and that false allegations were made against her. She claimed that she was genuinely unfit for the Cheshire and Wirral work but that her work as a bank nurse was of a different nature and therapeutic. Her attempts to appeal the criminal conviction failed albeit that at the date of delivery of the High Court judgment, the matter was still under consideration by the Criminal Cases Review Commission (the official independent body that investigates potential miscarriages of justice).

Giving his judgment in the case, Mr Justice Eyre said that an appeal (from a decision of the Fitness to Practise Committee) will be allowed if the decision under appeal was wrong, or if it was flawed as being unjust because of a serious procedural irregularity.

The Appellant’s contention in the present case was that the decision was wrong. In considering the matter, the judge would exercise his own judgment while having regard to the particular expertise of the panel and the breadth of its discretion.

Insofar as relevant, rules 31(2) and (3) of the Fitness to Practise Rules provide as follows: “(2) Where a registrant has been convicted of a criminal offence … (a) a copy of the certificate of conviction, certified by a competent officer of a Court in the United Kingdom … shall be conclusive proof of the conviction; and (b) the findings of fact upon which the conviction is based shall be admissible as proof of those facts. (3) The only evidence which may be adduced by the registrant in rebuttal of a conviction certified … in accordance with paragraph (2)(a) is evidence for the purpose of proving that she is not the person referred to in the certificate.”

One of the grounds of appeal advanced by Miss Fofanah was that because her conviction was being reviewed by the Criminal Cases Review Commission, she should be allowed to return to work pending the outcome of that review. The judge ruled that unless and until the conviction was overturned, the Panel was obliged to proceed on the basis of the conviction.

Dealing with the Appellant’s contention that the Panel should have investigated the facts underlying the conviction and not taken the conviction at face value, the judge said that such an approach was not open to the adjudicating body. The Panel by reason of rules 31(2) and (3) was compelled to regard the conviction as conclusive as to its facts and also to regard the findings of fact as proof of the facts underlying that conviction. Not only was that approach in accordance with the rules, but it was clearly correct as a matter of principle.

The Panel was entitled and indeed bound to proceed on the basis of the dishonesty established by the conviction. In those circumstances it was also entitled to conclude that there was impairment of the Appellant’s fitness to practise. Any other conclusion would have been bordering on the perverse. In those circumstances, it was certainly not disproportionate for the sanction of striking off to be imposed. It would have been surprising if any other sanction had been imposed in a situation where Miss Fofanah was maintaining the stance that she had done nothing wrong.

The Court went on to dismiss the appeal.

Reference: [2023] EWHC 1406 (Admin)

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