Pump Court Chambers

Dishonesty in Regulatory Proceedings

Blog 17th February 2016

It is important to realise that those sitting in regulatory proceedings may have a wide and varied perception of the meaning of Dishonesty. That itself is not surprising. Those of us who cut our teeth in the wide environs of criminal law have come to realise that dishonesty as a concept lies on a spectrum. At one end is conduct so predetermined and cold-blooded that it brooks little or no mitigation. Those who exploit an elderly householder of precious savings for unnecessary or ill performed repairs are a classic example. In non-legal language, the sentencing court will throw the book at the offender and why not? At the other end is a sudden dishonest appropriation of minor items of food by a hungry and deprived individual. The Courts, rightly, will lean over backwards not to punish those who have real mitigation. That leaves in the unspecific middle a huge variety of dishonest behaviour which needs to be analysed carefully in order to sentence fairly. That may produce some uncertainty of result. But in any event, the sentencer will have tried to assess and determine the level of dishonesty displayed. There is every opportunity for the advocate to make a difference.

So if dishonesty lies on a spectrum in our criminal courts, it cannot fail to be so also in regulatory proceedings. The really important point is that those proceedings should not be deprived of the necessary flexibility of disciplinary response by case law or dicta. That brings me very conveniently to the case of Parkinson v Nursing & Midwifery Council [2010] EWHC 1898 (Admin) and the comments of Mr Justice Mitting. No case on the subject of dishonest is more cited and arguably more misunderstood in disciplinary proceedings.

There it was held that: ‘a nurse found to have acted dishonestly is always going to be at severe risk of having his or her name erased from the register. A nurse who has acted dishonestly, who does not appear before the panel either personally or by solicitors or counsel to demonstrate remorse, a realisation that the conduct criticised was dishonest, and an undertaking that there will be no repetition, effectively forfeits the small chance of persuading the panel to adopt a lenient or merciful outcome and to suspend for a period rather than to direct erasure.’ Note that the case leaves open clear circumstances where a nurse need not lose their entire career. However my experience has been that the case has operated as a sword of Damocles over the heads of many panel members, who feel that a finding of dishonesty must carry the ultimate sanction.

It should do no such thing. Practitioners should continue to make submissions that dishonesty always lies on a spectrum and each case will depend on its own facts. That way injustice will not occur and minor dishonesty not carry a penalty which would not be exacted in criminal proceedings. Advocates must be robust to ensure a just result even in the face of stony faces. After all, that is the essence of independent persuasion.

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