conduct and competence committee substantive hearing€¦ · at mr o’flanagan’s address on 26...

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Conduct and Competence Committee

Substantive Hearing

26 June - 4 July 2017

Nursing and Midwifery Council, 61 Aldwych, London, WC2B 4AE

Name of Registrant Nurse: Mr Kevin (Caven) Michael O’Flanagan NMC Pin: 81Y1693E Part(s) of the register: Registered Nurse (sub part 1) – Adult 26 March 1985 Area of registered address: England Type of Case: Misconduct

Panel Members: Emma Boothroyd (Chair, Lay member)

Pradeep Khuti (Lay member)

Alister Campbell (Registrant member)

Legal Assessor: Gerard Coll

Panel Secretary: Kim Nyawira

Nursing and Midwifery Council: Represented by Ms Anna Ling, Counsel,

instructed by NMC Regulatory Legal Team.

Registrant: Mr O’Flanagan was not present and not

represented

Charges found proved: ALL Fitness to practise: IMPAIRED Sanction: Striking off order Interim Order: Interim suspension order (18 months)

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Decision on Service of Notice of Hearing:

Mr O’Flanagan was not in attendance or represented in his absence at the hearing. The

panel noted that written notice of this hearing had been sent to Mr O’Flanagan’s

registered address by recorded delivery and by first class post on 25 May 2017. The

Track and Trace documentation confirmed that the notice was delivered and signed for

at Mr O’Flanagan’s address on 26 May 2017 in the name “Kevin”.

The panel took into account that the notice letter provided details of the allegations, the

time, dates and venue of the hearing and, amongst other things, information about Mr

O’Flanagan’s right to attend, be represented and call evidence, as well as the panel’s

power to proceed in his absence. The panel was informed that a letter was sent

informing Mr O’Flanagan that the venue for the hearing had changed on 9 June 2017.

Rules 11 and 34 of The Nursing and Midwifery Council (Fitness to Practise) Rules

Order of Council 2004 (as amended February 2012) (“the Rules”) state:

11.— (2) The notice of hearing shall be sent to the registrant—

(b) in every case, no later than 28 days before the date fixed for the hearing.

34.—(1) Any notice of hearing required to be served upon the registrant shall be

delivered

by sending it by a postal service or other delivery service in which delivery or receipt is

recorded to,

(a) his address in the register

In the light of all of the information available, and the advice of the legal assessor, the

panel was satisfied that Mr O’Flanagan has been served with notice of this hearing in

accordance with the requirements of Rules 11 and 34.

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Proceeding in the registrant’s absence:

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...”

The panel noted that its discretionary power to proceed in the absence of a registrant

under the provisions of Rule 21 is one that should be exercised “with the utmost care

and caution”.

The panel has decided to proceed in the absence of Mr O’Flanagan. In reaching this

decision, the panel has considered the submissions of the case presenter, and the

advice of the legal assessor. It has had regard to the overall interests of justice and

fairness to both parties.

The panel took into account a bundle of email correspondence between Mr O’Flanagan

and an NMC case officer. It confirmed that Mr O’Flanagan was aware of this hearing

and that he would not be attending the hearing. In an email dated 14 June 2017. He

stated:

“Please accept this email as my authority for the panel to proceed with the hearing on

the 26th June in my absence.”

The panel noted that no application for an adjournment has been made and the panel

had no reason to believe that adjourning would secure Mr O’Flanagan’s attendance at

some future date. The panel also noted that there were 8 witnesses scheduled to attend

the hearing and any delay would inconvenience them and could have a detrimental

effect on their willingness to attend and/or their memory of events. Additionally, Mr

O’Flanagan has engaged with the NMC and provided his written responses to the

charges.

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Having balanced the interests of Mr O’Flanagan with those of the NMC and the public

interest in an expeditious disposal of this hearing, the panel has decided that it is fair,

appropriate and proportionate to proceed in the absence of Mr O’Flanagan.

Charges as read:

That you, a registered nurse:

1. From October 2006 to March 2014 caused or allowed:

1.1 Ms A;

1.2 One or more members of Ms A’s family;

1.3 Mr B and/or one or more of Ms A’s friends;

to believe that you were a surgeon and/or a doctor; (charge found proved)

2. Were dishonest in your conduct at charge 1 in that you knew that you were not a

surgeon or a doctor; (charge found proved)

3. On or around 10 February 2014 told Rev C that you were an ‘Orthopaedic

Practitioner’; (charge found proved)

4. Allowed your occupation to be recorded as ‘Orthopaedic Practitioner’ on your

marriage certificate for your marriage on 4 September 2010; (charge found

proved)

5. Were misleading in your conduct at charge 3 and/or charge 4 in that you knew

that your occupation was that of a nurse and intended to conceal this from Ms A;

(charge found proved)

6. On an unknown date, wrote a letter dated 1 July 2011 purporting to be from

Colleague D, which:

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6.1 Was addressed to ‘Mr C M O’Flanagan MBBS FRCS(Lon)’; (charge found

proved by way of admission)

6.2 Purported to offer you a ‘Fellowship in Cranio-Facial Maxillary Reconstruction

Surgery with a Special Interest in General Orthopaedic Trauma’ (“the

Position”); and (charge found proved by way of admission)

6.3 Described Colleague D as ‘Clinical Director to Surgery’; (charge found

proved by way of admission)

7. Were dishonest in your conduct at charge 6 in that you knew:

7.1 You did not hold the qualification MBBS FRCS(Lon); (charge found proved)

7.2 You had not been offered the Position; (charge found proved)

7.3 Colleague D was not employed as the Clinical Director to Surgery; (charge

found proved)

8. In or before August 2014 incorrectly described yourself as ‘Clinical Lead – Head

& Neck / Oral & Fascio Maxillary Surgery’ on the professional networking website

‘LinkedIn’; (charge found proved)

9. Were dishonest in your conduct at charge 8 in that you knew that you were not

employed as a Clinical Lead; (charge found proved)

10. Incorrectly claimed that you had worked one or more shifts set out in Schedule 1;

(charge found proved)

11. Were dishonest in your conduct at charge 10 in that you knew that you had not

worked one or more of the shifts set out in Schedule 1; (charge found proved)

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

misconduct.

Schedule 1

18 March 2013

25 March 2013

8 April 2013

15 April 2013

23 April 2013

29 April 2013

13 May 2013

2 July 2013

8 July 2013

15 July 2013

22 July 2013

29 July 2013

5 August 2013

12 August 2013

20 August 2013

23 August 2013

2 September 2013

9 September 2013

10 September 2013

11 September 2013

12 September 2013

13 September 2013

16 September 2013

20 September 2013

23 September 2013

30 September 2013

4 November 2013

11 November 2013

25 November 2013

26 November 2013

27 November 2013

28 November 2013

29 November 2013

11 December 2013

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Decision on the findings of fact and reasons:

In reaching its decisions on the facts, the panel considered all the evidence adduced in

this case together with the submissions made by Ms Ling on behalf of the NMC and Mr

O’Flanagan’s written responses to the charges.

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

The panel bore in mind that, in accordance with Rule 30 of NMC (Fitness to Practise)

Rules (“the Rules”), the burden of proof rested on the NMC, and that the standard of

proof was the civil standard, namely the balance of probabilities. This means that the

facts will be proved if the panel is satisfied that it is more likely than not that the

incidents occurred as alleged.

The panel drew no adverse inference from the non-attendance of Mr O’Flanagan.

The background to this case is as follows:

At the time of the allegations, Mr O’Flanagan was employed by Mid Essex Hospital

Services NHS Trust (“the Trust”). He was employed as a Theatre Nurse between 14

October 2002 and 28 March 2008 and became a Band 6 Theatre Scrub Practitioner on

1 October 2009.

The Trust was initially contacted by Mr O’Flanagan’s wife, Ms A, on 14 May 2014 when

she sent a letter advising that he had been ‘falsely passing himself off as medical doctor

to the outside world’. Ms A stated that this had been happening for the past 7 years of

their relationship. A further letter was sent to the Trust on 16 June 2014 by Ms A,

reiterating the allegation.

It is alleged that Mr O’Flanagan also dishonestly caused or allowed Mr B, a friend whom

he met through Ms A at a cycling group to believe that he was a surgeon and/or doctor.

Mr B was the best man at Mr O’Flanagan’s wedding to Ms A. He allegedly introduced

himself as a surgeon and, throughout their friendship, continued to describe himself as

such to Mr B and others.

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It is further alleged that during a meeting with Reverend C on 10 February 2014, while

in the process of registering to be married within the Church of England, Mr O’Flanagan

told Reverend C that he was an Orthopaedic Practitioner. It is also alleged that he

allowed his occupation to be recorded as Orthopaedic Practitioner on his marriage

certificate on his marriage on 4 September 2010, in an attempt to conceal, from Ms A,

the fact that he was a nurse and not a surgeon and/or doctor.

It is alleged that Mr O’Flanagan also created a letter dated 1 July 2011 purporting to be

from Colleague D which was addressed to him as Mr C M O’Flanagan MBBS FRCS

(Lon) and purported to offer him a Fellowship in Cranio-Facial Maxillary Reconstruction

Surgery with a special interest in General Orthopaedic Trauma (“the Position”). The

letter described Colleague D as Clinical Director to Surgery, It is alleged that Mr

O’Flanagan was dishonest in writing the letter as he knew that he did not hold the

qualification cited, that he had not been offered the Position and that Colleague D was

employed as a band 7 nurse and not as the Clinical Director to Surgery.

It is also alleged that Mr O’Flanagan dishonestly described himself as ‘Clinical Lead –

Head & Neck/Oral & Fascio Maxillary Surgery’ on the professional networking website

‘LinkedIn’ when he knew he was not employed as a Clinical Lead.

In August 2014, the Trust commenced an investigation into the following allegations:

That over a 7 year period Mr O’Flanagan had been posing as a Specialist

Registrar in Orthopaedic Surgery;

Alleged letters were sent to Mr O’Flanagan from the Trust addressing him as Dr.

O’Flanagan;

Letters were written to imply that Colleague D, a Band 7 Charge Nurse was

writing to Mr O’Flanagan and signing himself off as Clinical Director for Surgery

offering a Maxillio Facial Fellowship;

In January 2015, a different investigation was completed and a report submitted by the

local Counter Fraud Specialist on commission of the Head of Theatres at the Trust. It

was alleged that Mr O’Flanagan had dishonestly and/or incorrectly claimed for forty two

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bank shifts that he had not worked. Mr O’Flanagan was suspended by the Trust on 5

June 2014 whilst an internal investigation was conducted.

Mr O’Flanagan was referred to the NMC on 10 February 2015 by Ms A.

During the course of this hearing, the panel heard oral evidence from the following

witnesses and was provided with their associated exhibits:

Ms A, Mr O’Flanagan’s ex-wife and referrer;

Mr 2, Local Counter Fraud Specialist;

Mr B, mutual friend of Mr O’Flanagan and Ms A;

Reverend C, Registrar and Reverend who conducted the wedding between Ms A

and Mr O’Flanagan;

Mr 3, Band 7 Data Quality Manager;

Ms 4, Head of Midwifery/Clinical Director and Associate Chief Nurse;

Ms 5, Band 7 Senior Sister;

Ms 6, Band 7 Sister for Governance.

The panel considered that all the NMC witnesses gave clear and credible accounts in

evidence. It found them to be honest and reliable witnesses. The oral evidence they

gave in response to questions at the hearing was generally consistent with their

statements and other documentary evidence before the panel. Where they were unable

to give answers to questions, they explained why they could not. They answered

willingly and fully to the extent that they were able. Although some of the non-clinical

witnesses appeared to feel personally wronged by Mr O’Flanagan, they did not inflate

their evidence or exaggerate matters to make things worse for him.

The panel also had regard to all the responses relating to the charges from Mr

O’Flanagan. These included:

His responses, as recorded in the minutes of the investigatory interviews held by

the Trust on 19 August 2014 and 25 September 2014;

Email correspondence between Mr O’Flanagan and the NMC;

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Mr O’Flanagan’s standard directions form dated 5 May 2016;

Mr O’Flanagan’s response to the charges dated 15 September 2016.

The panel noted that in the standard directions form dated 5 May 2016, Mr O’Flanagan

made full admissions to all the charges. This corresponded with responses provided at

the second investigatory interview held by the Trust on 25 September 2014. However,

the panel also noted that the charges he made admissions to, and the allegations being

considered by the Trust, differed to the charges before this panel. The panel noted that,

in an email dated 22 June 2017, Mr O’Flanagan rescinded his admissions and invited

the panel to consider the responses, as provided in the form dated 15 September 2016,

as his final response to the charges against him. He included short explanations

detailing his account of events. As such, the panel took those responses into

consideration when making its findings on fact. In doing so, the panel bore in mind that

Mr O’Flanagan’s responses were hearsay, and so untested. Moreover, it noted that his

account of events in these responses appeared to be inconsistent and, in respect of

some charges entirely different to his own earlier accounts as recorded in the internal

investigation conducted by the Trust. Accordingly, the panel approached his responses

with caution unless they were consistent with other evidence before the panel.

The panel did note that Mr O’Flanagan was consistent in his admissions in respect of

charges 6.1, 6.2 and 6.3. Accordingly, the panel found these charges proved by reason

of his admissions. The panel then went on to consider the remaining charges namely

charges 1, 2, 3, 4, 5, 7, 8, 9, 10 and 11 and made the following findings on fact:

That you, a registered nurse:

Charge 1

From October 2006 to March 2014 caused or allowed:

1.1 Ms A;

1.2 One or more members of Ms A’s family;

1.3 Mr B and/or one or more of Ms A’s friends;

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to believe that you were a surgeon and/or a doctor

This charge is found proved

The panel heard evidence from Ms A who stated that she met Mr O’Flanagan (Caven

as she knew him) in October 2006 through an internet dating site. She told the panel

that, after a few brief messages via the dating site, they exchanged personal email

addresses and telephone numbers on the same day. She said that Mr O’Flanagan

telephoned her that evening and arranged to meet the following evening. During dinner,

he told her that he was an Orthopaedic Surgeon at Broomfield hospital. Ms A told the

panel that their relationship quickly progressed and they were soon living together. She

said that Mr O’Flanagan had several sets of blue hospital ‘scrubs’ in his flat and would

often change into them when he got home from work, as pyjamas and even as

comfortable wear around the house at the weekends. She also said that he had several

cotton caps decorated with skull and crossbones which he told her he wore when he

was operating and a stethoscope which he hung in his wardrobe. She told the panel

that she lived with Mr O’Flanagan from November 2006 until March 2008 and

throughout this period he kept a metal hip joint on the coffee table which he told her had

kept following a hip revision on a 90 year old man and intended to turn it into a door

knob. She told the panel throughout the relationship, Mr O’Flanagan referred to himself

as an orthopaedic surgeon, associate specialist or registrar and often spoke about

performing operations.

Ms A further stated that, during the course of their relationship, Mr O’Flanagan had

treated her for acute back pain and given her Diazepam, which she took believing him

to be a doctor. She also said that he received post either in the name of Dr Caven

O’Flanagan or Mr O’Flanagan. She told the panel that, in hindsight, she realised that his

official post came in the title Mr O’Flanagan and other unofficial mail would be in the

name Dr Caven O’Flanagan.

Ms A detailed conversations in which she and Mr O’Flanagan discussed career

progression for him as a surgeon. She also told the panel that, on one occasion, Mr

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O’Flanagan had seen that her feet had large bunions, one of which was scarred by an

unsatisfactory surgical procedure. When he asked her about it, she explained that she

was unhappy with the result. Mr O’Flanagan told her that because of their relationship

he could not perform corrective surgery, however, he told her that when she was ready

to consider further surgery, he would arrange for her to see his friend, a consultant he

referred to as “Fred the foot”.

Ms A told the panel that when she introduced Mr O’Flanagan to her friends and family,

he described himself as an orthopaedic surgeon and maintained this to them throughout

the seven years of their relationship. She said that he did so explicitly by saying he was

a surgeon, and implicitly by speaking about himself and his work in ways that suggested

he was a surgeon. She said that throughout the relationship he did nothing to correct

her perception that he was a surgeon, or that of her friends and family. Although he

talked to her about his work in the operating theatre and his colleagues, she did not

meet them socially.

The panel also heard evidence from Mr B who stated that he met Mr O’Flanagan in

2006 at a cycling group he and Ms A belonged to. He told the panel that he became

friends with the couple and was asked to be the best man at their wedding. He told the

panel that from the outset, Mr O’Flanagan had stated that he was a surgeon at

Broomfield hospital. Mr B told the panel that he said the same to everyone when he

introduced himself at the cycling group. Mr B said that he had wondered whether Mr

O’Flanagan had simply alluded to being a surgeon but he recalled that even his own

parents knew Mr O’Flanagan as a surgeon. He told the panel that Mr O’Flanagan

would often describe his day and the operations he had undertaken that day. Mr B also

recalled that in Christmas 2009, he had back pain that was so severe he was unable to

move. He was living with his parents at the time and his mum suggested ringing Mr

O’Flanagan for assistance. He said that Mr O’Flanagan and Ms A arrived an hour later

and Mr O’Flanagan examined his spine and gave him Diazepam and Diclofenac to take.

In his written responses dated 15 September 2016, Mr O’Flanagan denied this charge.

He stated that he never described himself or alluded to the fact that he had been

anything other than an ‘operating theatre practitioner’ or ‘clinical lead band 6’ which, he

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asserted, is the term used for the generic role in Theatre. He further stated that he did

refer to himself as an Orthopaedic Theatre Practitioner when working in that arena and

continued to use the same role description as Head and Neck Theatre Practitioner

when he transferred to this arena. Mr O’Flanagan argued that the only group “accusing

him of acting this are directly associated with my ex-wife.” He asserted that no

individuals independent to her namely his employer, work associates, friends or family

ever claimed they had heard him make such a claim. He suggested that his wife wanted

to “wreck his career” as part of an antagonistic divorce.

In reaching its decision, the panel took into account the evidence of Ms A which was

corroborated by that of Mr B. It noted that both witnesses were fair and measured in

their evidence and were willing to accept the limitations of their memory in respect of

certain aspects, given the passage of time. Ms A was clear and consistent throughout

her evidence and had good recall in relation to multiple incidents throughout her 7 year

relationship with Mr O’Flanagan where he caused or allowed her, her family and her

friends to believe he was a surgeon. Both Ms A and Mr B were clear that he had told

them he was a surgeon and they both believed he was a surgeon throughout this

period. They also stated that Mr O’Flanagan did not attempt to correct the fact that he

was not a surgeon but a nurse throughout this period.

The panel further noted that, although Mr O’Flanagan denied the allegations in their

entirety at the first investigatory interview held by the Trust on 19 August 2014, he later

made admissions to the fact that he led Ms A, her family and friends to believe that he

was a doctor. During that meeting, Mr O’Flanagan is recorded as stating:

““when I met [Ms A], she was a doctor and I made up the fact that I was at least on level

with her, that was years of that …

[Question]: Are there anybody or any other people to whom you have made out that in

your own words you are something that you’re not? …

KO … the difficulty I would ever have is [Ms A] believed what I had been insinuating, so

did many members of her family and many members of our friends … yes there are

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probably many people who have that same impression of me that [Ms A] had because

of the cascading nature of friends and family …”

In respect of charge 1.1 and charge 1.2, the panel accepted the evidence of Ms A which

it found to be credible and reliable. The panel did not accept the account provided by Mr

O’Flanagan in his written responses dated 15 September 2016. At no time does Mr

O’Flanagan appear to claim that he informed any of the parties that he was, in fact, a

registered nurse. In her evidence, Ms A was clear that the first time she became aware

that he was a registered nurse was when she searched his filing cabinet and found

details of his nursing registration on or around 11 March 2014.

In respect of charge 1.3, the panel accepted Mr B’s evidence which it found to be

credible and consistent. He was clear in his recollection that Mr O’Flanagan introduced

himself as a surgeon to the cycling group. The panel found it improbable that Mr B, Ms

A and her friends and family would have continued to believe that Mr O’Flanagan was

indeed a surgeon without him causing or allowing them to do so. It also noted that he

appeared to make admissions to that effect.

For these reasons, the panel was satisfied, on the balance of probabilities, that from

October 2008 to March 2014, Mr O’Flanagan had caused or allowed Ms A (charge 1.1),

one or more members of Ms A’s family (charge 1.2) and Mr B and one or more of Ms

A’s friends (charge 1.3) to believe that he was a surgeon and/or doctor. It therefore

found charges 1.1, 1.2 and 1.3 proved.

Accordingly, the panel finds charge 1 proved in its entirety.

Charge 2

Were dishonest in your conduct at charge 1 in that you knew that you were not a

surgeon or a doctor


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In reaching its decision, the panel heard and accepted the legal assessor’s advice and

applied the test for dishonesty described in R v Ghosh [1982] QB 105. The first limb of

the test is whether, according to the ordinary standards of reasonable and honest

people, Mr O’Flanagan’s actions were dishonest in the respects alleged in the charge. If

they were not dishonest by those standards, that is the end of the matter and the

allegation fails. If Mr O’Flanagan’s actions were dishonest by those standards then

there is the second limb of the test - the panel has to consider whether he knew that

what he was doing was, by those standards, dishonest.

In respect of the first limb of the test, the panel considered that, at all material times, Mr

O’Flanagan was aware that he was a registered nurse and not a surgeon and/or doctor.

The panel was satisfied that, by causing or allowing Ms A, one or more members of her

family, Mr B and/or one or more members of Ms A’s friends to believe that he was a

surgeon and/or doctor, Mr O’Flanagan’s actions were dishonest, according to the

ordinary standards of reasonable and honest people.

In respect of the second limb of the test, the panel was satisfied, on the balance of

probabilities, that Mr O’Flanagan deliberately created the impression that he was a

surgeon and/or doctor to Ms A, her friends and family and to Mr B between October

2006 and March 2014. He compounded this dishonesty by his failure to correct that

mistake when faced with many opportunities to do so. He attended to both Ms A and Mr

B when they suffered from acute back pain and provided them with diazepam. He did

not, at this point, inform them that he was not a surgeon and/or doctor. He engaged in a

deliberate course of conduct designed to mislead them and went to great lengths to

conceal the fact that he was a nurse. The panel bore in mind the evidence of Ms A and

Mr B that they never met Mr O’Flanagan’s work colleagues and none came to his

wedding. Ms A said that there was a strict separation between his home and work life.

Mr O’Flanagan knew he was a nurse and the panel was satisfied that, by causing or

allowing Ms A, her friends and family and Mr B to believe that he was a surgeon and/or

doctor, Mr O’Flanagan knew that what he was doing was, according to the ordinary

standards of reasonable and honest people, dishonest. For completeness, the panel

observed that, had it approached the matter using the “modified Ghosh” test of

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“reasonable and honest practitioners”, it would have had no difficulty in coming to the

same conclusion.

Accordingly, the panel found charge 2 proved.

Charge 3

On or around 10 February 2014 told Rev C that you were an ‘Orthopaedic Practitioner’


The panel heard evidence from Reverend C who said that she first met Mr O’Flanagan

and Ms A when they contacted her about getting married at the Church of England

(“CoE”). She explained that because both had been married before, she needed to

make sure that their situation was compliant with the CoE regulations regarding re-

marriage in the church. She said that they needed to meet particular regulations to

enable them to be married in a particular church and to do so she was required to meet

them and discuss their particular circumstances. She told the panel that, to her

recollection, this meeting took place on or around 10 February 2010. She recalled

taking a full history in relation to their previous marital statuses and wrote an account of

her interactions with both parties in a letter dated 1 September 2016, which the panel

had sight of.

Reverend C told the panel that she remembered that, during that meeting, Mr

O’Flanagan was vague about his occupation. She could not recall exactly how or the

words used exactly, but he seemed to struggle to give a job title, which she found very

unusual. She said that “some people say I am moving from this to that, sometimes they

will give a vague title and you ask them to be precise and they can normally do that” but

Mr O’Flanagan found it too difficult to explain, which struck her as a little odd. This was

particularly so because his occupation was not the focus of the interview rather a side-

line. She told the panel that it stuck out in her memory because of the indecision and

the difficult they had with him coming to a decision.

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The panel noted that the written responses provided by Mr O’Flanagan did not

specifically refer to this charge as drafted. In response to an allegation that he

incorrectly described his occupation as “orthopaedic practitioner” on his marriage

certificate, Mr O’Flanagan stated that “the information given to the Registrar to complete

the certificate stated my role as Orthopaedic Theatre Practitioner. Due to the lack of

space in the box on the certificate, the word ‘Theatre’ has been omitted.”

In reaching its decision, the panel considered that it appears to be undisputed by Mr

O’Flanagan that the words “Orthopaedic” and “Practitioner” were used when providing

his occupation to Reverend C. The dispute arose as to whether Mr O’Flanagan stated

that he was an Orthopaedic Theatre Practitioner as opposed to Orthopaedic

Practitioner. The panel accepted Reverend C’s evidence in this regard. She told the

panel that, given her responsibility as a Registrar, she would have recorded what was

said to her and it was unlikely that she would have removed the word “theatre”, if

provided, to accommodate the space provide in the form. She said that, in those

circumstances, there were four further lines which would have been used should they

have been required. Moreover, the panel bore in mind Reverend C’s evidence that the

incident only stuck out in her mind because of the unusual and indecisive behaviour

displayed by Mr O’Flanagan when he was asked to provide an occupation. The panel

found her evidence to be credible and reliable. It therefore preferred and accepted her

evidence over that of Mr O’Flanagan and determined that it was more likely than not

that Mr O’Flanagan told Reverend C that he was an ‘Orthopaedic Practitioner’.


Charge 4

Allowed your occupation to be recorded as ‘Orthopaedic Practitioner’ on your marriage

certificate for your marriage on 4 September 2010


Reverend C told the panel that she would have filled out some aspects of the marriage

certificate and although she could not be sure, she recalled that Ms A would have filled

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out the rest. She told the panel that, in her experience, over 99% of the time it was the

woman who would filled out the details. This accorded with Mr O’Flanagan’s own

assertions that Ms A had filled in the details on the marriage certificate. The panel

noted, however, that Mr O’Flanagan signed the marriage certificate certifying that the

information contained on it was correct. As such, the panel was satisfied that Mr

O’Flanagan allowed his occupation to be recorded as ‘Orthopaedic Practitioner’ on his

marriage certificate for his marriage on 4 September 2010.


Charge 5

Were misleading in your conduct at charge 3 and/or charge 4 in that you knew that your

occupation was that of a nurse and intended to conceal this from Ms A


The panel also heard evidence from Ms 5 that it was possible for Mr O’Flanagan’s job

title to be described as ‘Orthopaedic Practitioner’, although she said that would not have

been how he would have been referred to at work. When asked, Mr 3, Ms 4, Ms 5 and

Ms 6 all stated that Mr O’Flanagan’s occupation was that of a nurse. Ms 5 did accept

that it was possible for Mr O’Flanagan’s job title to be described as ‘Orthopaedic

Practitioner’, although she said that he would not have been referred to as this at work.

However, she was also clear that his occupation was that of a nurse.

The panel also took into account the unusual and indecisive response given by Mr

O’Flanagan when asked what his occupation was by Reverend C. His vagueness and

difficulty in stating his occupation, to the extent that Reverend C found it odd, was, in

the panel’s view indicative of Mr O’Flanagan’s attempt to avoid stating that he was a

nurse. The panel was satisfied, on the balance of probabilities, that Mr O’Flanagan was

misleading in his conduct as outlined in charge 3 and/or 4 in that he knew his

occupation was that of a nurse and intended to conceal this from Ms A. Accordingly, the

panel found charge 5 proved.

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Charge 6

On an unknown date, wrote a letter dated 1 July 2011 purporting to be from Colleague

D, which:

1.1 Was addressed to ‘Mr C M O’Flanagan MBBS FRCS(Lon)’;

1.2 Purported to offer you a ‘Fellowship in Cranio-Facial Maxillary Reconstruction

Surgery with a Special Interest in General Orthopaedic Trauma’ (“the

Position”); and

1.3 Described Colleague D as ‘Clinical Director to Surgery’;

This charge is found proved by way of admission

Charge 7

Were dishonest in your conduct at charge 6 in that you knew:

7.1 You did not hold the qualification MBBS FRCS(Lon);

7.2 You had not been offered the Position;

7.3 Colleague D was not employed as the Clinical Director to Surgery;


In reaching its decision, the panel heard and accepted the legal assessor’s advice and

applied the test for dishonesty described in R v Ghosh [1982] QB 105. The first limb of

the test is whether, according to the ordinary standards of reasonable and honest

people, Mr O’Flanagan’s actions were dishonest in the respects alleged in the charge. If

they were not dishonest by those standards, that is the end of the matter and the

allegation fails. If Mr O’Flanagan’s actions were dishonest by those standards then

there is the second limb of the test - the panel has to consider whether he knew that

what he was doing was, by those standards, dishonest.

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In respect of the first limb of the test, the panel considered that the letter in question was

found on Mr O’Flanagan’s computer and was never used or shown to Ms A. However,

the panel also noted that, at the time Mr O’Flanagan wrote the letter, he had been

discussing a promotion and an offer of fellowship with Ms A in the context of them

purchasing a larger home. The content of the letter appeared to be created for the

purposes of supporting this conversation and his fictional promotion. Although, Mr

O’Flanagan never used or showed the letter to Ms A, the panel was satisfied, that he

wrote the letter to perpetuate the fictional scenario he had already given Ms A. The

panel also noted that, in writing the letter, Mr O’Flanagan obtained the Trust logo and

used it as a letterhead. In his written responses, Mr O’Flanagan accepted that the letter

“was a fictitious composition to play [his] very low self-esteem at the time.” Taking all

these factors into account, the panel determined that Mr O’Flanagan’s actions, in writing

the letter dated 1 July 2011 purporting to be from Colleague D addressed to him as Mr

C M O’Flanagan MBBS FRCS (Lon), purporting to offer him the Position and describing

Colleague D as Clinical Director to Surgery was dishonest, according to the ordinary

standards of reasonable and honest people.


probabilities, that the letter written by Mr O’Flanagan deliberately created the impression

that he held the qualification MBBS FRCS (Lon) when he did not, that he had been

offered the Position when he had not and that Colleague D was the Clinical Director to

Surgery when he knew Colleague D was a Band 7 nurse. The panel determined that, in

the context of a conversation he had had with Ms A, Mr O’Flanagan wrote that letter to

maintain the fiction. Mr O’Flanagan knew that he did not hold the qualification outlined

above, that there was no such position offered to him and that Colleague D was a nurse

and not the Clinical Director to Surgery. The panel was therefore satisfied that, on the

balance of probabilities, Mr O’Flanagan knew that what he was doing was, according to

the ordinary standards of reasonable and honest people, dishonest.


Charge 8

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In or before August 2014 incorrectly described yourself as ‘Clinical Lead – Head & Neck

/ Oral & Fascio Maxillary Surgery’ on the professional networking website ‘LinkedIn’


The panel had sight of a screen shot of the LinkedIn page which showed that Mr

O’Flanagan described himself in the manner outlined in the charge. The panel heard

evidence from Mr 3, Ms 4, Ms 5 and Ms 6 who were all consistent in their evidence that

although nurses could sometimes be referred to as Clinical Leads, this would usually be

agreed as a job title. Ms 6 confirmed that she used the title but that this was agreed in

her contract. Moreover, the witnesses all stated that the ‘Head & Neck/Oral & Fascio

Surgery’ was a service and it was highly unlikely, within the Trust, that a nurse would be

the head of a service. They said that this was usually a position reserved for doctors.

In his written responses, Mr O’Flanagan denied this charge. He stated that the term

‘Clinical Lead’ is used in many areas of the NHS to denote the team leader in that area.

Many job descriptions use it throughout the Trust. He stated that he had never been told

nor questioned about using the term in the two years indicated in the charge. He

accepted that it may have been confusing but stated that he did not use it to mislead.

He said that the term Operating Theatre Practitioner or Clinical lead was never an

indication of the role he carried out and the only person to mention the title ‘clinical lead’

was his ex-wife.

In reaching its decision, the panel considered that, on the evidence, Mr O’Flanagan was

neither a team leader nor a Clinical Lead, a term which it accepted would have to have

been agreed in his contract. It therefore determined that Mr O’Flanagan had incorrectly

described himself as ‘Clinical Lead – Head & Neck/Oral Fascio Maxillary Surgery’ on

the professional networking website ‘LinkedIn’. The panel accepted the evidence of Mr

3, Ms 4, Ms 5 and Ms 6 that such a title would be reserved for the head of a service,

who would always be a doctor. Mr O’Flanagan was not a doctor and could therefore not

have been the Clinical Lead of Head & Neck/Oral Fascio Maxillary Surgery. The panel

found it implausible that 4 of Mr O’Flanagan’s colleagues would know the distinction but

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that he did not know that it would be misleading. For these reasons, the panel

determined that there was sufficient evidence to find this proved, on the balance of

probabilities.


Charge 9

Were dishonest in your conduct at charge 8 in that you knew that you were not

employed as a Clinical Lead;


In respect of the first limb of the Ghosh test, the panel considered its findings in respect

of charge 8 that Mr O’Flanagan knew that he was not employed as a clinical lead.

Therefore, in describing himself as such, the panel was satisfied that his actions were

dishonest, according to the ordinary standards of reasonable and honest people.


probabilities, that Mr O’Flanagan deliberately used the term clinical lead when he knew

he did not hold this position. It was therefore satisfied, on the balance of probabilities,

that Mr O’Flanagan knew that what he was doing was, according to the ordinary

standards of reasonable and honest people, dishonest.


Charge 10

Incorrectly claimed that you had worked one or more shifts set out in Schedule 1;


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The panel also heard evidence from Ms 5 who told the panel that the suspected fraud in

relation to Mr O’Flanagan’s bank shift claims came to light on or around November 2013

or 2014. She could not recall the year but recalled that it was just before Christmas. She

stated that Mr O’Flanagan had agreed to do some shifts but then sent a text message

cancelling the shifts while he was away saying that an opportunity had come up for him

to go away. Ms 5 said that because she could not find any one to cover the shifts, she

ended up doing them herself.

Ms 5 stated that when she was looking through the claims, in order to authorise them,

she came across one of Mr O’Flanagan’s shift which she knew he had not done

because she had stepped in and done it. When she discovered this, Mr O’Flanagan

happened upon her office and she asked him about it. She told the panel that his claim

form had four shifts which she knew he had not done, but at the time she assumed it

was a genuine mistake. However, when she asked him about it, he “went quiet and grey

and looked sick”. She said that he tried to grab the form off her and kept saying “it was a

mistake” and “I wrote it down wrong”. She told the panel that his reaction to the

question left her with a feeling that “something was not quite right” so she spoke to

another colleague about the matter.

They agreed to check the systems for further discrepancies and got printouts from the

bank office and compared it with other rotas. She said that the bank shifts were

recorded on the e-rostering system and they were cross-referenced with the hard copy

off duty records and the allocation theatre lists. Ms 5 said they found multiple instances

where Mr O’Flanagan had claimed for shifts which he had not actually worked. As a

result of their findings, the matter was escalated and eventually passed to the

investigator, Mr 2. She told the panel that to claim a bank shift required authorisation

from either her or another band 7 nurse. A nurse’s line manager could not approve such

claims. She told the panel that Mr O’Flanagan’s alleged double claiming had not come

to light earlier because the e-rostering system only showed bank shifts, not general

shifts.

The panel also heard evidence from Mr 2 who stated that he was instructed by The

Trust to conduct an investigation into bank shift claims made by Mr O’Flanagan

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between 4 March 2013 and 11 December 2013, which Mr O’Flanagan was suspected to

have fraudulently claimed for. Mr 2 told the panel that he concluded his investigation in

January 2015 and submitted a Final Counter Fraud Reactive Report. He said that in the

course of his investigation he interviewed Mr O’Flanagan and noted that although he

made no admissions of culpability, he appeared to change his story when presented

with evidence that contradicted his account. For example, initially Mr O’Flanagan stated

that he had taken annual leave during the period 25 – 29 November 2013 and the bank

claims relating to the shifts during that period had been submitted in error. He also

stated that he had not undertaken any additional clinical work during the period.

However, when presented with copies of bank claims for this period, he changed his

account and stated that the claims related to project work carried out at home. He told

Mr 2 that of the 42 shifts he was suspected of fraudulently claiming for, he believed 75%

were clinical shifts and any claim where there was no entry related to project work.

Mr 2 told the panel that his investigation report concluded by stating that during the

period 4 March – 11 December 2013, Mr O’Flanagan received salary payments totalling

£6,502.69 gross, £4, 5551.95 net, for 42 bank shifts. The panel accepted Mr 2’s

analysis that this represented shifts that Mr O’Flanagan had claimed for but there was

no evidence that he had worked them.

The panel also noted that, in the course of her evidence, Ms A described events which

occurred on or around 7 – 18 September 2013. She told the panel that she and Mr

O’Flanagan were out of the country and referred the panel to bank statements which

showed usage of Mr O’Flanagan’s bank card from their joint account whilst abroad. Ms

A had not been called a witness to this specific charge, however, she was clear that

they were both in Spain for a few days and then in France for the rest of the period. The

panel had regard to bank statements which showed bank transactions supporting her

evidence in this regard. The panel was satisfied, on the basis of this evidence, that Mr

O’Flanagan could not have worked in Broomfield during the period of 7-18 September

2013. As such, the shifts claimed during this period had been claimed incorrectly.

The panel also took into account the evidence of Ms 6 who confirmed that Mr

O’Flanagan had been involved in project work at home which he claimed as bank shifts.

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However, she stated that this project concluded in February 2013 and no further work

had been authorised by her. She said that, as far as she was aware, there was no

further work authorised. The panel was therefore satisfied, on the balance of

probabilities, that the shifts claimed by Mr O’Flanagan as ‘project work’ were incorrect

and he had not done those shifts.

Moreover, the panel accepted the evidence of Ms 5 that Mr O’Flanagan’s reaction to her

questioning about the shifts is what led her to become suspicious and investigate the

claims. Taking this into account, together with the evidence of Mr 2 and Ms 6, which it

found to be credible and reliable, the panel was satisfied, on the balance of

probabilities, that Mr O’Flanagan had incorrectly claimed all 42 shifts as set out in

schedule 1.


Charge 11

Were dishonest in your conduct at charge 10 in that you knew that you had not worked

one or more of the shifts set out in Schedule 1;


In respect of the first limb of the Ghosh test, the panel considered that Mr O’Flanagan

claimed for shifts which he knew he had not worked. On at least one occasion,

comprising of at least 6 shifts, he was out of the country and could not have been

working. The panel was satisfied that Mr O’Flanagan’s actions in this regard were

dishonest, according to the ordinary standards of reasonable and honest people.


probabilities, that Mr O’Flanagan knew that he had not worked those shifts when he put

in claims for them. It noted his reaction when questioned by Ms 5 who, at the time of

asking, genuinely believed Mr O’Flanagan had made an honest mistake. It was this

reaction that led her to investigate the bank claims and to discover multiple instances of

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incorrect claiming. The panel also noted the evidence of Mr 2 and Ms 6 which it found to

be credible and reliable. The panel was therefore satisfied that, at the time Mr

O’Flanagan made claims for the 42 shifts, he knew that what he was doing was,

according to the ordinary standards of reasonable and honest people, dishonest.


Decision on misconduct and impairment:

Having announced its findings on the facts, the panel next considered whether the facts

found proved amount to misconduct and, if so, whether Mr O’Flanagan’s fitness to

practise is currently impaired by reason of that misconduct.

Ms Ling submitted that the charges found proved were serious and related to multiple

instances of deliberate dishonesty and misleading conduct over a prolonged period of

time. She submitted that Mr O’Flanagan deliberately misled many individuals including

his now ex-wife, her friends and family. She submitted that the pervasive pattern of his

dishonest conduct occurred both in his private and professional life. She invited the

panel to consider that the charges found proved demonstrated a theme of deception

and abuse of trust by Mr O’Flanagan. She referred to the evidence of Ms 5 who stated

that Mr O’Flanagan abused his position of trust and the trust she placed in him by

claiming bank shifts he had not worked.

Ms Ling reminded the panel that Mr O’Flanagan administered medication to Ms A and

Mr B who both believed he was a doctor and therefore accepted treatment from him in

good faith. She submitted that his use of Colleague D’s name and the Trust letter head

to dishonestly write a letter for the purpose of maintaining the fiction he had created that

he was a surgeon, exemplified the seriousness of the misconduct.

Ms Ling referred to various provisions of the code: Standards of conduct, performance

and ethics for nurses and midwives (2008) (“the code”) and submitted that his repeated

dishonesty was a clear breach of these provisions of the code. She submitted that the

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panel should find that Mr O’Flanagan’s conduct fell far short of the standards expected

of a registered nurse and was serious enough to amount to misconduct.

In relation to impairment, Ms Ling reminded the panel of its duty to protect the public

and uphold the reputation of the nursing profession. She submitted that the seriousness

of Mr O’Flanagan’s actions was such that he was not fit to continue to practise as a

registered nurse without restriction. She invited the panel to find that he had brought the

profession into disrepute, breached fundamental tenets of the profession and acted

dishonestly. In respect of insight, Ms Ling submitted that there was no evidence of

insight from Mr O’Flanagan. She referred to his responses to the charges and submitted

that Mr O’Flanagan had demonstrated a continued lack of acceptance of responsibility

by deflecting blame onto others for his actions. She submitted that there was no

meaningful insight or remorse and there was no evidence that Mr O’Flanagan had

reflected on the wider impact of his conduct on Ms A, Mr B, his colleagues at the Trust

and on the reputation of the profession. She submitted that Mr O’Flanagan’s conduct

had affected Ms A, Mr B and his colleagues at the Trust.

Ms Ling accepted that dishonesty is generally difficult to remediate. In all the

circumstances of this case, she invited the panel to find that the prolonged nature of Mr

O’Flanagan’s dishonesty and misleading actions was indicative of the presence of

attitudinal issues. She further submitted that this would be very difficult to remediate

and, in the absence of any evidence of insight and remediation, there remained a real

risk of repetition. She therefore invited the panel to find that Mr O’Flanagan’s fitness to

practise is currently impaired.

In reaching its decision, the panel considered the submissions made by Ms Ling, on

behalf of the NMC. It also had regard to all of the oral and documentary evidence

adduced including Mr O’Flanagan’s written responses to the charges. The panel heard

and accepted the legal assessor’s advice.

The panel bore in mind that this is a two stage process. It must first consider whether

the facts found proved amount to misconduct and, if so, whether by reason of that

misconduct, Mr O’Flanagan’s fitness to practise is currently impaired. The panel noted

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that misconduct is conduct which falls short of that which can reasonably be expected of

a registered nurse, but that the misconduct must be serious. In deciding the issue of

impairment the panel must take account of the proven conduct of the practitioner and

then consider it in the light of all the other relevant factors known to it in answering the

question of whether, by reason of the nurse’s misconduct, his fitness to practise is

currently impaired.

Panel’s decision on misconduct:

The panel first considered whether the facts found proved amounted to misconduct

which was serious. This is a matter for the panel’s own professional judgement.

The panel had regard to the 2008 version of the code which was in effect at the time of

Mr O’Flanagan’s actions. The code contains the underlying principles that guide the

nursing profession and is in place to protect the public and to ensure that proper

standards of the profession are upheld.

The panel has reminded itself that registrants are personally accountable, under the

code, for acts and omissions in their practice. The panel had particular regard to the

Preamble of the code which states that:

“The people in your care must be able to trust you with their health and wellbeing.

To justify that trust, you must:

make the care of people your first concern …

Be open and honest, act with integrity and uphold the reputation of your

profession. ”

The panel determined that Mr O’Flanagan’s course of dishonest conduct also breached

paragraph 61 of the code which states:

“You must uphold the reputation of your profession at all times.”

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Mr O’Flanagan embarked on a sustained and calculated course of dishonest and

misleading conduct in his private life over a prolonged period of 7 years. He went to

considerable lengths to maintain the fiction that he was a surgeon and to obfuscate his

real profession (that of a nurse) as part of an elaborate deception, specifically designed

to exploit the trust his now ex-wife, her friends and family had in him. This was a pattern

of behaviour which eventually permeated his professional life and, over a period of 9

months, Mr O’Flanagan dishonestly claimed for 42 bank shifts which he knew he had

not worked. Again, Mr O’Flanagan abused his position of trust and the trust his

colleagues had in him for his own ends. His actions were inconsistent with his

obligations as a registered nurse. The panel bore in mind that honesty, integrity and

trustworthiness are the bedrock of any nurse’s practice. It therefore determined that Mr

O’Flanagan’s actions represented serious departures from the standards of honesty and

integrity that are fundamental requirements of being a registered nurse. The panel was

in no doubt that other members of the profession would regard the conduct found

proved as deplorable. it therefore determined that the charges found proved, both

individually and collectively, were serious enough to amount to misconduct.

Panel’s decision on impairment:

The panel then went on to consider, on the basis of the misconduct found, whether Mr

O’Flanagan’s fitness to practise is currently impaired. In doing so, it considered the

questions of insight and remorse and considered whether the conduct is capable of

remedy, whether it has been remedied and whether it is likely to be repeated in the

future.

The panel bore in mind the appropriate guidance outlined by Dame Janet Smith in her

Fifth Shipman Report, and quoted by Mrs Justice Cox in the case of Grant, which is as

follows:

“Do our findings of fact in respect of the [registrant’s] misconduct … show that

his/her fitness to practise is impaired in the sense that s/he:

a. has in the past acted and/or is liable in the future to act so as to put a patient

or patients at unwarranted risk of harm; and/or

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b. has in the past brought and/or is liable in the future to bring the profession

into disrepute; and/or

c. has in the past breached and/or is liable in the future to breach one of the

fundamental tenets of the profession.

d. Has in the past acted dishonestly and/or is liable to act dishonestly in the

future.”

The panel first considered whether Mr O’Flanagan had acted so as to put patients at

unwarranted risk of harm, had brought the nursing profession into disrepute, had

breached one of the fundamental tenets of the nursing profession, or had acted

dishonestly. The panel acknowledged that no concerns have been raised about Mr

O’Flanagan’s clinical skills. However, the panel bore in mind that, on the evidence

before it, Mr O’Flanagan attended to, and treated, Ms A and Mr B who were both

suffering from acute back pain. Both witnesses told the panel that Mr O’Flanagan

provided them with prescription-only medication, which they took in good faith believing

him to be a qualified doctor. He did this in the absence of a comprehensive medical

history. His actions in this regard potentially placed Ms A and Mr B at an unwarranted

risk of harm.

Moreover, the panel considered that, by claiming bank shifts he had not worked, Mr

O’Flanagan’s actions potentially diverted resources from the Trust which may have

been used for patient care. Taking this into account, the panel concluded that Mr

O’Flanagan had acted so as to put patients at unwarranted risk of harm. Further, the

panel was satisfied that Mr O’Flanagan’s course of sustained and escalating dishonest

conduct had brought the profession into disrepute; that he breached the fundamental

professional tenets of integrity and trustworthiness; and that not only had he acted

dishonestly, but his dishonesty was at the higher end of the spectrum.

In considering whether Mr O’Flanagan’s fitness to practise is currently impaired, the

panel had careful regard to the questions of his insight, remorse and remediation.

As regards insight, the panel noted that Mr O’Flanagan has been inconsistent in his

response to the allegations. At the first investigatory interview with the Trust held on 19

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August 2014, he denied all the charges. He then made admissions at the second

interview held on 25 September 2014. He also made full admissions to the charges (at

the time) in his standard directions form to the NMC dated 5 May 2016. However, in his

most recent response to the charges dated 15 September 2016, Mr O’Flanagan

rescinded the majority of his admissions.

The panel noted, in particular, Mr O’Flanagan’s email dated 14 June 2017 to an NMC

case officer. He stated:

“I hope the NMC can consider my actions as a moment of madness, acting in the

privacy of my own mind that was turned against me in malice. I have never acted in a

manner unbecoming to a nurse, clinically ever.

I have taken the lessons learnt from this experience, reflected and now understand I

was wrong in part, but not in all allegations made, now and never again, will I ever

practice (sic) as a nurse.”

Mr O’Flanagan appears to consider his conduct, which occurred over a 7 year period, to

be a “moment of madness”. The panel found this email to be representative of the

general tenor of Mr O’Flanagan’s responses and his attitude to the charges against him.

For example, in response to charges 1-9, he repeatedly asserted that the charges had

arisen as a result of a malicious attempt by Ms A and her friends and family to “destroy”

him “personally, financially and professionally”. In his response to the allegations dated

15 September 2016, when referring to the 42 bank shifts which he had incorrectly

claimed, Mr O’Flanagan stated that he “did not consider the work carried out during the

time indicated for which payment was claimed and paid over 42 bank-shifts dishonest.”

However, there was documentary evidence showing that, on at least 4 of the shifts

claimed in September 2013, Mr O’Flanagan was out of the country on holiday with his

wife and could therefore not have been working. In the panel’s view, Mr O’Flanagan, in

his responses, demonstrated a lack of insight into the gravity of his conduct and its

wider impact on Ms A, Mr B, his colleagues, the Trust and on the reputation of the

profession.

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As regards remediation, the panel bore in mind that dishonesty is an attitudinal failing

which is generally difficult to remedy. On the evidence before it, the serious and

protracted nature of Mr O’Flanagan’s dishonest behaviour indicate the presence of

deep-seated attitudinal issues which appear to be entrenched within Mr O’Flanagan’s

behaviour. There was no evidence before it that Mr O’Flanagan had taken any steps to

remediate his conduct or any evidence of any willingness on his part to do so. Indeed,

Mr O’Flanagan has stated that he no longer wishes to return to nursing practice. The

panel was therefore satisfied that there is a significant risk of repetition and that Mr

O’Flanagan would likely act in the same dishonest way in the future should similar

circumstances arise, causing further breaches of the fundamental professional

principles of integrity and trustworthiness and further damage to the reputation of the

profession.

Furthermore, the panel was in no doubt that the need to uphold proper professional

standards and public confidence in the profession and the regulatory process would be

undermined if a finding of impairment were not made in the particular circumstances of

this case.

For all of these reasons, the panel concluded that Mr O’Flanagan’s fitness to practise is

currently impaired by reason of his misconduct.

Determination on Sanction:

Having determined that Mr O’Flanagan’s fitness to practise is impaired, the panel

considered what sanction, if any, it should impose in relation to his registration.

The panel has decided to impose a striking off order.

In reaching its decision on sanction, the panel considered the submissions made by Ms

Ling, on behalf of the NMC. It also considered all the evidence that had been adduced

during these proceedings.

Ms Ling invited the panel to consider all the sanctions available. She referred the panel

to the NMC’s Indicative Sanctions Guidance (“ISG”) and submitted that sanction was a

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matter for the panel’s own judgement. She invited the panel to consider the aggravating

and mitigating factors in this case, some of which she detailed.

In reaching its decision, the panel took account of the ISG and the need to protect the

public as well as the wider public interest. This includes maintaining public confidence in

the profession and the regulatory process, and declaring and upholding proper

standards of conduct and behaviour. The panel applied the principle of proportionality,

weighing the interests of the public with Mr O’Flanagan’s interests, and carefully

considered the mitigating and aggravating factors in this case. It acknowledged that in

deliberating on sanction it should start with the least restrictive sanction and work

upwards where appropriate. The panel also bore in mind that the purpose of a sanction

was not to be punitive, although it might have that effect.

The panel exercised its own judgement and accepted the advice of the legal assessor.

The aggravating factors which the panel found to be present were as follows:

Mr O’Flanagan’s dishonest behaviour was not isolated. The panel has found

multiple instances of sustained and deliberate dishonesty and misleading

conduct which occurred over 7 years;

Mr O’Flanagan’s dishonesty was at the higher end of the spectrum of impaired

fitness to practise and the serious and protracted nature indicated the presence

of deep-seated attitudinal issues which appear to be entrenched within Mr

O’Flanagan’s behaviour;

In relation to the dishonest claims for bank shifts which he had not worked, Mr

O’Flanagan abused his position of trust for his own financial gain, and created

the possibility that he had diverted valuable resources away from patient care;

Mr O’Flanagan has not demonstrated insight, remorse or remediation;

Mr O’Flanagan provided Ms A and Mr B with prescription-only medication. His

actions in this regard potentially placed Ms A and Mr B at an unwarranted risk of

harm.

The mitigating factors which the panel found to be present were as follows:

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No concerns have been raised about Mr O’Flanagan’s clinical skills;

There was no evidence that Mr O’Flanagan had previously been the subject of

any adverse regulatory proceedings;

Mr O’Flanagan made limited admissions to the charges;

There has been some engagement with the NMC.

The panel then went on to consider what, if any, sanction was appropriate in this case.

The panel first considered taking no action. Mr O’Flanagan’s misconduct demands that

a sanction be imposed to mark his serious departure from the professional standards

set out in the NMC Code and to protect the public and the wider public interest. In

addition to the risk of repetition identified in its findings on impairment, the panel has

concluded that the facts in this case were far too serious for it to take no action.

The panel then considered whether a caution order would be appropriate. It took into

account the relevant paragraphs of the ISG. It bore in mind that a caution order would

not impose any restriction on Mr O’Flanagan’s practice. The panel has determined that

the misconduct in this case was at the higher end of the spectrum of impaired fitness to

practise. In all the circumstances, the panel concluded that a caution order would not be

sufficient to protect the public where there is a real risk of repetition or where it was

necessary to uphold proper professional standards, and to maintain public trust and

confidence in the nursing profession and the efficacy of its regulation.

The panel next considered the imposition of a conditions of practice order. It noted the

factors set out in the relevant paragraphs of the ISG which indicate when such an order

may be appropriate, in particular where there are identifiable areas of nursing practice

that require assessment or retraining. The panel was mindful that Mr O’Flanagan’s

clinical practice and competence has not been called into question and that dishonesty

is an attitudinal failing which is difficult to address by conditions. In all the

circumstances, the panel determined that no conditions of practice could be devised

which would be relevant, proportionate, workable and measurable, or sufficient to

protect the public. Most significantly, given the sustained and escalating nature of Mr

O’Flanagan’s dishonest conduct, the panel was of the view that a conditions of practice

order would not be sufficient to protect the wider public interest. For these reasons, the

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panel determined that a conditions of practice order would not be an appropriate or

proportionate response.

Having concluded that a conditions of practice order was not appropriate, the panel

considered the next available sanction of suspension. It had careful regard to the

relevant paragraphs of the ISG. The ISG indicates that suspension may be appropriate

where some or all of the following factors are apparent (this list is not exhaustive):

A single instance of misconduct but where a lesser sanction is not sufficient.

No evidence of harmful deep-seated personality or attitudinal problems.

No evidence of repetition of behaviour since the incident.

The panel is satisfied that the nurse or midwife has insight and does not pose a

significant risk of repeating behaviour.

The misconduct is not fundamentally incompatible with continuing to be a

registered nurse or midwife in that the public interest can be satisfied by a less

severe outcome than permanent removal from the register.

The panel considered that the incidents, which form the subject of 11 charges, could not

properly be described as a single instance of misconduct. They amount to a course of

conduct which involved multiple breaches of the principles of honesty, integrity and

trustworthiness over a seven-year period. Mr O’Flanagan’s dishonesty was persistent

and covered up over a prolonged period as part of an elaborate deception calculated to

exploit the trust placed in him. The panel was mindful of its findings on impairment that

Mr O’Flanagan’s dishonesty was at the higher end of the spectrum. His dishonesty and

misleading behaviour was part of an entrenched pattern of behaviour which eventually

permeated his professional life where he abused his position of trust for his own

financial gain.

The panel took into account Mr O’Flanagan’s responses in respect of all the charges.

When viewed in their totality, they indicated a persistent lack of insight on his part into

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the gravity of his dishonest behaviour, and the wider implications on Ms A, Mr B, his

colleagues at the Trust and on the reputation of the profession. This persistent lack of

insight, coupled with the serious and protracted nature of the misconduct in this case,

reinforced the panel’s conclusion that there were harmful deep-seated, attitudinal issues

on Mr O’Flanagan’s part. Accordingly, it is the panel’s judgement that this is not a case

in which a period of suspension would be appropriate or sufficient to protect the public.

A suspension order would not be sufficient to satisfy the wider public interest in

upholding standards and maintaining confidence in the nursing profession.

In all the circumstances of this case, and taking careful regard to paragraph 72 of the

ISG, the panel determined that a striking-off order is the only appropriate and

proportionate sanction. Mr O’Flanagan’s misconduct was fundamentally incompatible

with his ongoing registration. It represented repeated and significant departures from

the fundamental principles of the nursing profession over a significant period of time.

Given his persistent lack of insight, the presence of harmful, deep-seated attitudinal

issues and the significant risk of repetition identified at the impairment stage, the panel

is satisfied that a striking off order was the only sanction sufficient to protect the public.

The panel also concluded that public trust and confidence in the nursing profession and

in the regulatory process would not be sustained if the panel were not to remove him

from the Register.

The panel was mindful of the potential impact that such an order would have on Mr

O’Flanagan. However, taking full account of the important principle of proportionality,

the panel was of the view that the interests of the public outweighed his interests.

The panel, therefore, directs the Registrar to strike Mr O’Flanagan’s name from the

Register. He may not apply for restoration until five years after the date that this

decision takes effect.

Determination on an Interim Order:

The panel has considered all the information before it including the submissions made

by Ms Ling, on behalf of the NMC.

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The panel accepted the advice of the legal assessor, who referred the panel to its

powers under Article 31 of the Nursing and Midwifery Order 2001.

Article 31 of the Nursing and Midwifery Order 2001 outlines the criteria for imposing an

interim order. 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;

and/or that it is in Mr O’Flanagan’s own interest.

Ms Ling submitted that an interim order should be made on the grounds that it is

necessary for the protection of the public and that it is otherwise in the public interest.

She submitted that given the panel’s determination on impairment and sanction, an

interim suspension order should be imposed for 18 months to cover the 28 day period

following notification of this decision, in which an appeal can be made, and thereafter to

cover the period until any such appeal is determined.

The panel had regard to the circumstances of the case and the reasons set out in the

decision for the striking-off order. The panel considered that an interim order is

necessary for the protection of the public and that it is otherwise in the public interest.

Not to make an interim order would be incompatible with the panel’s earlier findings.

For all the reasons set out in the panel’s determination thus far, the panel has decided

that an interim conditions of practice order would not be appropriate.

In all the circumstances, an interim suspension order is necessary, appropriate and

proportionate following its decision on sanction to impose a striking-off order.

The panel determined that the order should run for a period of 18 months in order to

cover the period for any appeal. If at the end of the appeal period of 28 days, Mr

O’Flanagan has not lodged an appeal, the interim order will lapse and be replaced by

the substantive order. On the other hand, if he does lodge an appeal, this interim order

will continue to run, for the duration of any appeal until its expiry, unless it is extended

by the High Court.

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That concludes this determination.

conduct and competence committee substantive hearing€¦ · at mr o’flanagan’s address on 26...

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