Criminal Dishonesty and Professional Regulation!
As a lawyer discussing health law, particularly as it relates to nursing practice I tend to gloss over “criminal law” arguing that as citizens we are all bound by the law and should we, whether as professionals or citizens, engage in criminal behaviour we can be prosecuted. In Australia some states have a Criminal Code others rely on the Common Law. Generally all of us are aware of the laws that govern Australians. The police are empowered to ensure the law is complied with and if a crime has been alleged they find the evidence and lay charges.
Most of us in our lifetime will be fined for speeding or failing to stop at a light while driving, moving without coming to a complete stop at a stop sign or parking in excess of a time limit. These crimes are summary offences. They may be brought before a magistrate or dealt with by a notice of a fine. Once we finish grumbling about unfairness and pay the fine we move on. These offences do not result in a criminal record.
There are indictable crimes. Those are acts that are deemed far more serious. Some of us have worked with staff who have committed theft either from the facility or patients. Some have known staff to be arrested for stealing or misusing drugs. It is always a shock and the stories become part of that facility’s history, told and retold at tea break for years.
However in reality there have been few criminal nurses and the criminal law is not what nurses are anxious about when they ask me “can I do this, is it legal?” Recently I reread a now rather dated paper presented by Dr Russell G. Smith then Deputy Director of Research, Australian Institute of Criminology looking at the question of how professionals who engage in dishonest conduct in connection with their professional practice should be dealt with. I was not surprised to note how little of the paper was devoted to nursing because much of the article was focused on fraud.
However there were some issues in there that are worth nurses considering. Not the least being the definition of a professional. Smith quoted Johnson (1972, p. 23) who proposed six characteristics: the presence of skill based on theoretical knowledge; the provision of training and education; some means of testing the competence of members; organisation of the members; adherence to a code of conduct; and an element of altruistic service in which work is performed not solely for financial reward. Some cynics might see the last characteristic as the reason nurses were so long denied a living wage!
I think it is important and we should know what it is we are claiming to be so that we can have the confidence to practice and recognise the burdens and rewards society imposes on professionals. One of the burdens is of course regulation. As I said the paper focused upon dishonesty in the guise of professional fraud rather than what we nurses focus upon, competence. Yet the point was made that any professional accused of dishonesty whether it be theft or fraud, standards of honesty for criminal prosecutions are determined in the same way as for other accused persons. What makes things different for the professional is, if accused there will also be professional disciplinary proceedings separate to a criminal court hearing. The regulatory authority will consider whether the conduct ‘would reasonably be regarded as disgraceful or dishonourable’ by professionals in the same profession ‘of good repute and competency’ (Allinson v General Council of Medical Education and Registration of the United Kingdom  1 QB 750, 760-1).
For professionals matters of dishonesty are considered in light of their “professional” seriousness. This means the criminal concept of “intent” is looked at. A hierarchy of least serious to most serious is one way of determining the level of sanction that will be imposed.