England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		1st May 2009

1. SIR MICHAEL HARRISON:

Introduction

2. This is a statutory appeal under Article 38 of the Nursing & Midwifery Order 2001 from a decision of the Conduct and Competence Committee ("the Panel") of the Nursing and Midwifery Council taken on 20th October 2008 and notified to the appellant on 10th November 2008 whereby the Panel made an order striking the appellant off the register.
3. The appellant became a registered nurse on 24th April 2006 and was subsequently employed at the North Middlesex Hospital in London.
4. In January 2007 she was arrested by the police on charges of money laundering. She was alleged to have allowed her bank account to be used to receive sums which she knew or suspected had been stolen by means of false invoices from Thurrock District Council. She was charged with two counts under sections 328 and 334 of the Proceeds of Crime Act 2002.
5. The first count related to the receipt of approximately £43,000 paid into her account. After two transfers of £10,000 made to her former husband's account, the remaining money was transferred to other bank accounts or was cashed by cheques. The second count related to some £46,000 but the payment was stopped before the money reached her account.
6. The appellant pleaded not guilty to the charges on the basis that she was unaware of the fraud and was acting under her husband's instructions. I should mention that husband subsequently left for Nigeria and she has since divorced him.
7. After a trial in August 2007, the appellant was found guilty. On 28th September 2007 she was sentenced by Mr Recorder Brooke-Smith to 12 months' imprisonment suspended for 2 years with a requirement to complete 150 hours of unpaid work.
8. When passing sentence, the learned Recorder stated:

"You have lost any credit you could have had for a plea of guilty and the sum of money was substantial. The verdict of the jury makes plain that they disbelieved you from beginning to end in your attempt to deny this offence. In my judgment you have persistently tried to lie your way out of it."

9. In February 2008, Basildon Crown Court made a confiscation order against the appellant in the sum of £27,000 which was paid in full by her after she had sold her property. She completed the 150 hours unpaid work in December 2008.

The Panel's decision

10. On 20th October 2008 the appellant appeared before a Panel of the Conduct and Competence Committee of the Nursing and Midwifery Council. She admitted her convictions but argued that her fitness to practice was not impaired. The Panel concluded that her fitness to practice was impaired and they imposed a striking off order with a suspension order to cover any appeal.
11. The Panel's reasons for imposing a striking off order were as follows:

"The panel has considered all the evidence in this case, both in relation to the charge and the circumstances of the Registrant. It has also had regard to the submissions of both the parties, the Legal Assessor's advice and the Indicative Sanctions Guidance.

In coming to its decision, the panel has taken into account the public interest and the Registrant's own interests as it is required to do and has sought to balance these in arriving at a considered and proportionate sanction.

The panel first considered whether to take no action. However, the misconduct is too serious in nature to justify this course.

Next it considered a Caution Order but decided that this course would be insufficient in the light of her dishonest actions and the seriousness of the charge.

In light of the nature of the allegations within the charge and the fact that they do not relate to her clinical practice, the panel is of the view that Conditions of Practice would be inappropriate.

Turning to suspension, the panel take the view that the Registrant's conduct is fundamentally incompatible with continuing to be registered with the NMC as there has been a serious departure from the relevant standards of the Code.

The only course left to the panel is to impose a Striking Off Order. When coming to this conclusion the panel weighed the interests of the Public against those of the Registrant. It also took into account that a sanction should not be punitive.

The panel heard that the Registrant was now a single parent with three children to support, she had shown remorse and had not re-offended. She was committed to her profession and now had insight into her shortcomings.

However, the panel consider that her misconduct is a serious departure from the relevant standards as set out in the Code of Professional Conduct. It heard that one of the beliefs of her culture was that a wife should obey her husband in all things. Although the panel are sympathetic to cultural influences, these should not override the law of the land or a professional person's Code of Conduct.

The panel heard that during her trial the Registrant persistently lied to the Court and this demonstrates little insight or understanding as to the importance of honesty. A nurse cares for patients who are vulnerable and where it is essential that she is trustworthy and honest and where external influences do not override her integrity. The panel are not convinced that this would be the case if the Registrant is allowed to continue to practise. Therefore, the public interest must be protected not only so far as protecting standards and patients are concerned but also in order to protect the reputation of the profession."

Appellant's submissions

12. In appealing the decision to make a striking off order, Ms Annand, who appeared on behalf of the appellant, submitted firstly that the Panel had failed to give adequate weight to the appellant's personal mitigation and, secondly, that the decision to strike off was disproportionate.
13. In support of her first submission that the Panel had failed to give adequate weight to the appellant's personal mitigation, Ms Annand relied on the following matters. The appellant was a single parent of three children. She was of good character with no previous convictions. He church thought very highly of her. Her husband had played a part in, and was the real beneficiary of, the criminal activity whilst she had benefitted very little. She was easily influenced by others, especially by her husband as a result of the Yoruba culture under which wives are expected to obey husbands. Ms Annand accepted that the Panel had listened to and understood the mitigation, but she suggested that it had not placed sufficient weight on it.
14. In support of the second submission that the decision to strike off was disproportionate, Ms Annand relied on two cases - a Privy Council decision in the case of Manzur v General Medical Council [2001] UKPC 55, and a decision of Holman J in R (on the application of James) v Nursing and Midwifery Council [2008] EWHC 365.
15. In the Manzur case, an ophthalmic surgeon made false claims to have carried out work that he had not in fact carried out, and he was convicted of criminal offences of false accounting. The General Medical Council erased his name from the register but, on appeal, the Privy Council restored it. The offending behaviour was described by the Privy Council as "blatant dishonesty." The amount of money involved was just over £700. The conduct was described as an isolated fall from grace during a long and distinguished career. The Privy Council concluded that the appropriate order would be suspension of registration for 3 months.
16. Ms Annand accepted that there were factual differences between that case and the appellant's case but she relied on it principally as showing that, even in cases of blatant dishonesty, it was not always necessary to make a striking off order. She submitted that the appellant's conduct was an isolated fall from grace by a person of otherwise impeccable character.
17. In the James case, the appellant nurse had been charged, together with her husband and brother, with conspiracy to defraud a firm of accountants of over £1.5 million by creating false invoices for work that had not been done, using the home address of the appellant and her husband. A small part of the proceeds amounting to about £9,000 was subsequently paid by her husband into her bank account. The jury convicted her husband and her brother of conspiracy but they could not agree whether the appellant was guilty of conspiracy. She subsequently pleaded guilty to a count of possessing criminal property contrary to section 329(1)(c) of the Proceeds of Crime Act 2002, on the basis that she suspected that it constituted a benefit from criminal conduct. She was sentenced to 9 months' imprisonment suspended for 2 years and a confiscation order which was made was duly paid by her. She had a previous conviction in 1993 for theft of some food belonging to the hospital where she worked. Holman J allowed the appeal and remitted the case to be redetermined on account of the inadequacy of the reasons given.
18. Ms Annand relied on the following passage in the judgment of Holman J at paragraph 39:

"... I have come to the very firm view that this is one of those cases where, with all due respect to the committee, one cannot consider the reasons as, overall, adequate. I say that for a number of reasons taken in combination. First, it seems to me that the final decision to strike this nurse off may, I stress may, have been more severe than all the circumstances of this case required or warranted. The view of the committee "that the only appropriate sanction" was to strike off may not be right. I have a serious concern that the committee may mistakenly have felt that they had no alternative but to strike off in this case. Whilst the case is certainly not on all fours with Manzur, Manzur does demonstrate that even in the case of "blatant dishonesty" an erasure or striking off may not always be necessary. Second, I have a serious doubt in this case as to how the committee treated their consideration of character and mitigation... Third, the reasons do not demonstrate, at any rate expressly, that the committee followed the stepped approach that their own indicative guidance document describes and requires, and which the legal assessor had advised and directed them they should follow."

19. Ms Annand relied on the fact that Holman J thought that the strike off order in the James case might have been too severe in circumstances where the appellant had a previous conviction committed in the course of her job, whereas the appellant in this case had no previous conviction and her offence had not been committed in the course of her job.
20. Having regard to the points made arising from the cases of Manzur and James, it was submitted that the strike off order was disproportionate in this case. I was asked to quash the order and to substitute a suspension order for 1 year.

Conclusions

21. There is no dispute between the parties as to the test which has to be satisfied in the circumstances of this case, namely whether the striking off order was "excessive and disproportionate" (see Gosh v General Medical Council [2001] 1 WLR 1915 at page 1923) or "outside the range of what could be regarded as reasonable" (see R (on the application of Bevan) v General Medical Council [2005] EWHC 174 at paragraph 25).
22. I also have to bear in mind, as was pointed out by Mrs Thompson who appeared for the respondent, that the respondent body is a specialist tribunal whose understanding of what the nursing profession expects of its members deserves respect (see Meadow v General Medical Council [2007] QB 462 at paragraph 197).
23. Dealing with the appellant's first submission that the Panel had failed to give adequate weight to the appellant's personal mitigation, it is certainly right to say that, as so often happens in these types of cases, the appellant had some strong points to make in personal mitigation but, as was pointed out by Sir Thomas Bingham MR, as he then was, in Bolton v The Law Society (1993) EWCA Civ 32 at paragraph 16, personal mitigation has less weight in this type of case than in ordinary criminal cases because the tribunal's orders are not primarily punitive and the mitigation does not touch on the essential issue of the need to maintain public confidence in the reputation of the profession.
24. It is clear from the reasons given by the Panel which I quoted earlier, and from reading the transcript of the proceedings, that the Panel plainly took into account the personal mitigation put forward on behalf of the appellant. There is no dispute about that. It is also clear from the Panel's reasons that they carried out the necessary weighing exercise. The question of the weight to be attached to the personal mitigation is very much a matter for the Panel. Bearing in mind that less weight is to be attached to personal mitigation than in criminal cases because, as the Panel expressly recognised, the Panel's orders are not punitive, and bearing in mind that respect must be given to the fact that this is a specialist tribunal, and also bearing in mind the importance of the public interest in upholding the reputation of the profession, I find it quite impossible to say that the Panel failed to give adequate weight to the appellant's personal mitigation. I do not therefore accept the appellant's first submission.
25. I turn then to the appellant's second submission that the striking off order was disproportionate. I bear in mind the cases of Manzur and James which were relied on by the appellant but the assistance that is gained from them is limited. As was accepted, the facts of Manzur were not comparable to this case, and it is quite apparent that the reason for Holman J's decision in the James case was that the Panel had given inadequate reasons. He stated at paragraph 43:

"... My essential reason for allowing this appeal has to do with the inadequacy of the reasons given and my concerns, as I have described, that there may be error in the reasoning process. If I were satisfied that no Conduct and Competence Committee of the Council could properly have struck the nurse off, and that the only proper decision was some alternative outcome, whether caution or suspension, then I would go direct to that result today. But that is not my final position on this case. I myself can see considerable arguments both for and against striking off."

26. It is clear from that passage that Holman J was not convinced that the Council should not have made a striking off order. It is also clear that, in that case, the Panel did not follow the step by step approach contained in the Indicative Sanctions Guidance, which was followed by the Panel in this case. In doing so, the Panel in this case concluded that a suspension order was inappropriate because the appellant's conduct was fundamentally incompatible with continuing registration as there was a serious departure from the relevant standards of the Code of Professional Conduct. The Panel were concerned about the appellant's honesty, not only in relation to the criminal offence but also because she had persistently lied to the court, and they were concerned that her integrity could be overridden by the influence of others.
27. In those circumstances, and bearing in mind the need to protect the reputation of the profession, which was uppermost in the Panel's mind, I do not consider that the decision to make a striking off order could be said to be excessive and disproportionate or outside the range of what could be regarded as reasonable. The appellant's case was carefully considered by the Panel and adequate reasons were given. In my view, this is not a decision with which the court ought to interfere. It follows that I do not accept the appellant's second submission that the striking off order was disproportionate.
28. Having given my reasons for rejecting both of the submissions made on behalf of the appellant in this case, it follows that this appeal must be dismissed.
29. SIR MICHAEL HARRISON: Are there any consequential matters?
30. MRS THOMPSON: My Lord, yes. I do have a schedule of costs prepared on behalf of the respondent. My learned friend has seen that my Lord and I understand there is a query about one or two matters. May I pass the schedule up. (Same Handed) I should ask my learned friend--
31. SIR MICHAEL HARRISON: Perhaps the right way of doing it is this. I will infer from what you have said you are asking for the respondent's costs?
32. MRS THOMPSON: I am, my Lord.
33. SIR MICHAEL HARRISON: You are doing so in the sum of £2,500.
34. MRS THOMPSON: Yes, I am thank you very much.
35. SIR MICHAEL HARRISON: First of all on the principle of the matter, do you resist that your client should pay the respondent's costs?
36. MISS ANNAND: We understand in the circumstances that costs will be borne by the appellant.
37. SIR MICHAEL HARRISON: There are some points on the quantum are there?
38. MISS ANNAND: Yes there are. Very minor points. On the whole we can see it is by and large very reasonable.
39. SIR MICHAEL HARRISON: On the face of it, the total sum seem to be reasonable, I have to say.
40. MISS ANNAND: We would simply ask your Lordship to consider if 10 hours for the preparation of a skeleton argument and a further 5 hours for the hearing preparation is perhaps a little more than usual and in the circumstances would be asking your Lordship to consider reducing that by however many hours your Lordship considered to be appropriate in the circumstances, but beyond that we do recognise that it is very reasonable.
41. SIR MICHAEL HARRISON: Thank you. I hear what you say, but I do not think those amounts can be criticised. The sum of £2,500 seems to me to be reasonable and therefore I will make an order that the appellant pays the respondent's costs in the sum of £2,500.
42. MRS THOMPSON: My Lord, I am grateful.