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Cite as: [2009] EWHC 144 (Admin)

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		Neutral Citation Number: [2009] EWHC 144 (Admin)
		Case No: CO/0399/2008

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

Royal Courts of Justice
Strand, London, WC2A 2LL

13 February 2009

B e f o r e :

CHRISTOPHER SYMONS QC
Sitting as a Deputy Judge of the High Court
____________________

Between:

	Wadanalahugedera Chandrasekera	Appellant
	- and -
	Nursing and Midwifery Council	Respondent

____________________

Mr John de Bono (instructed by Lanyon Bowdler) for the Appellant
Ms Melanie McDonald (in house counsel for the Nursing & Midwifery Council)
for the Respondent
Hearing date: 22nd January 2009
____________________

HTML VERSION OF JUDGMENT
____________________

Christopher Symons QC:

Introduction

The Appellant, who is aged 61, has been a nurse for all of her adult life. It is not suggested that her work as a nurse has been anything less than satisfactory. On 22 October 2005, while suffering from a depressive disorder and anxiety brought on by the conduct of her husband, the Claimant killed her husband with an axe. Having spent about nine months in custody on remand, on 22 August 2006 she was given a three year community punishment having pleaded guilty to manslaughter on the grounds of diminished responsibility.

The Claimant was initially suspended by the Interim Orders Committee of the Respondent but that suspension was lifted on 5 December 2006 and she was allowed to return to work under the supervision of a Dr Elapatha. On 17 May 2007 a panel of the Investigating Committee reviewed the conditions of practice and decided to lift them thereby allowing the Claimant to continue to practice without restriction. That panel, in their letter to the Claimant, said:

"The panel has considered your case very carefully in view of the serious nature of the offences committed.

The panel considered information from a psychiatrist and your current employer that you are a safe practitioner. The previous panel concluded that you are not a danger to the public or yourself and this panel concurs with that option (I think they meant opinion).

…

A panel of the Investigation Committee has still to decide whether there is a case to answer in relation to the allegation that has been made against you."

On the 12 December 2007 the Nursing and Midwifery Council's Conduct and Competence Committee struck the Appellant off the nursing register and she now appeals to this court against that decision.

Statutory and legal matters

The fitness to practice scheme under which the Appellant was dealt, was established by Part V of the Nursing and Midwifery Order 2001 (SI 2002/253) The Order provides for a case to be screened by the Investigating Committee before being referred to the Conduct and Competence Committee where the Investigating Committee concludes there is a case to answer. A hearing is conducted in accordance with the Nursing and Midwifery (Fitness to Practice) Rues 2004 which are provided for by S12004/1761.

The Conduct and Competence Committee is a lay panel with a requirement that one member is a registered nurse. The sanctions available to the Committee apart from a striking off order are suspension for up to 12 months, a conditions of practice order up to three years, a caution or no sanction.

Article 38 of the 2001 order provides for an appeal to the High Court from a decision of the Conduct and Competence committee. Under Article 38 (3) the Court may:

"(a) dismiss the appeal;

(b) allow the appeal and quash the decision appealed against;

(c) substitute for the decision appealed against any other decision the Practice Committee concerned or the Council, as the case may be, could have made; or

(d) remit the case to the Practice Committee concerned or the Council, as the case may be, to be disposed of in accordance with the directions of the court … and may make such order as to costs … as it, … thinks fit."

The appeal is by way of rehearing (see Practice Direction at 52PD.116 at paragraph 52.22.3(1)(cc) and (2)). The Court of Appeal has provided guidance on the appropriate approach to be taken in the case of Meadow v. General Medical Council [2007] QB 462:

"But even when a review is a full re-hearing in the sense of considering the matters afresh, if necessary by hearing oral evidence again and even admitting fresh evidence, the appellate court should still, said May LJ at paragraph 96 in E.I.Dupont de Nemours and Co. v. ST Dupont (Note) [2006] 1 WLR 2793, para 96] "give to the decision of the lower court the weight that it deserves." This elasticity of meaning in the word re-hearing in CPR 52.11 should clearly apply also to the same word in the Practice Direction. It all depends on the nature of the disciplinary tribunal, the issues determined by it under challenge and the evidence upon which it relied in doing so, how the High Court should approach its task of deciding whether the decision of the tribunal was, as provided by C.P.R. 52.3(A) "wrong", and whether on the way to reaching such a conclusion, it draws, pursuant to CPR 52.4 "any inference of fact which it considers justified on the evidence"." Per Auld L.J para 128.

And at paragraph 197 Auld L.J concluded:

"…it is plain from the authorities that the Court must have in mind and give such weight, as is appropriate in the circumstances to the following factors. (i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect. (ii) The tribunal had the benefit, which the court normally does not, of hearing and seeing the witness on both sides. (iii) The questions of primary and secondary fact and the overall value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers."

In Raschid v. General Medical Council [2007] 1 WLR 1460 Laws L.J. said at para 19:

"As it seems to me the fact that a principal purpose of the panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision making body in the shape of the panel."

In relation to criminal convictions there are two cases which it seems to me assist the Court as to the correct approach. The first is the well known passage in the judgment of Sir Thomas Bingham MR (as he then was) in Bolton v. The Law Society [1994] 1 WLR 512:-

"Because orders made by the tribunal are not punitive, it follows that considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentence imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of being struck off or suspension would be little short of tragic. Often he will say, convincingly, that he has learnt his lesson and will not offend again…All these matters are relevant and should be considered. But none of them touches on the essential issue which is the need to maintain among other members of the public a well founded confidence that any solicitor they instruct will be a person of unquestionable integrity, probity and trustworthiness…The reputation of the profession is more important than the fortunes of any individual member. Membership of the profession brings many benefits, but that is part of the price."

The second case is the case of Low v. General Osteopathic Council [2007] EWHC 2839 (Admin) where Sullivan J. (as he then was) having cited the passage of Lord Bingham above said:

"Because of these considerations the seriousness of the criminal offence as measured by the sentence imposed by the Crown Court, is not necessarily a reliable guide to its gravity in terms maintaining public confidence in a particular profession."

In that case of Low the Court also referred to the cases of Ghosh v. General Medical Council [2001] 1 WLR 1915 at 1923 and to Moody v. General Osteopathic Council [2004] EWHC 967 as to the appropriate approach. The Court can interfere if the sanction was excessive and disproportionate, outside the range of what could be regarded as reasonable or clearly wrong.

With this law and guidance firmly in mind I now turn to look at the facts in a little more detail and to the arguments on both sides.

The facts

The Appellant was born in a rural area of Sri Lanka in Kandy. She was the youngest of four siblings. She had two sisters; one of them called Soma is 10 years older than the Appellant. Her sister Soma had a daughter called Suseema known as Dammika. The Appellant, after what was clearly a hard childhood, did extremely well winning a scholarship to a boarding school were she excelled academically. In due course she went to college and became a state registered nurse. It was following her training that she moved to the United Kingdom where she retook her nursing examinations, finally becoming a State Registered Nurse in this country in 1976. She became a ward sister in 1980.

After getting married and becoming pregnant, the Appellant and her husband moved to Maidstone in Kent. She had two children, a son and a daughter, born in 1982 and 1986 respectively. As her husband did not give the Appellant any money, and they were very hard up, she went back to work very shortly after giving birth as a staff nurse in a hospital in Maidstone. Her husband sent what money he had back to his family in Sri Lanka which caused the Appellant much unhappiness. When challenged her husband struck her about the head several times.

The relationship with her husband was not good and the Appellant suffered both physical and psychological abuse. It was around 1990 that she invited her sister's daughter Dammika to come and stay with them. From about 1991 her husband moved out of the marital bedroom into a separate room. She began to have suspicions about the relationship between her husband and Dammika. Her husband treated her badly and continued to verbally abuse her. She developed symptoms of anxiety and low mood. When her husband left her in 1999 she became more seriously depressed. Her husband subsequently went on holiday with Dammika and their daughter. The Appellant was not invited. In early 2000 the Appellant was receiving counselling as she was so distressed over her marital problems and her husband leaving her. The Appellant still loved her husband and was emotionally very dependant upon him.

In 2004 her husband informed the Appellant that he intended to divorce her. The Appellant was devastated and this lead to an immediate panic attack. She sought further counselling. She became unable to work and was emotionally very labile. By this time she was alone at home as her youngest child had gone to university. She had more time off work in 2005. The Appellant discovered that her husband was living in the same area as Dammika. She knew Dammika had given birth to a daughter in 2001 but she thought this was as a result of a casual relationship but she realised the truth when Dammika's daughter referred to her husband as her daddy.

The Appellant went round to the house where her husband and niece were living in the early hours of 21^st October 2005. She was in a very disturbed state. The following evening her husband came round to the family home. She had hoped that her son would confront her husband with the truth about his relationship with Dammika but he did not. Her husband began to leave. The Appellant picked up an axe and followed him outside. She shouted at him to tell the truth but he ignored her and walked away. It was at this stage that the Appellant struck him two or three times with the axe.

There was medical evidence before the Court at her trial from Dr Mezey and from Dr Joseph. At the time the offence was committed the Appellant was in a state of extreme distress and desperation. She had been subject to cumulative acts of provocation over a number of years and had been subjected to humiliation, psychological and physical abuse throughout her relationship with her husband. She suffered at the time of the offence from an underlying psychiatric illness. In Dr Joseph's view she would have been too distressed and agitated to give evidence at her trial. The advice given was that a plea be accepted to manslaughter on the grounds of diminished responsibility. That advice was accepted.

In passing sentence the learned Judge said:

"It is clear apart from this offence, you have otherwise lived an honourable and hardworking life and that you are valued and respected by family, friends and work colleagues. You have worked for many years first as a nurse and then as a health visitor. The range and strength of the testimonials from the professionals who have worked with you clearly reveal the real and important contribution you have made to our society. You have not just coasted through your professional life, but have put your heart and soul into your work. That particularly underlines the isolated nature of this offence.

…

So what then is your responsibility for this offence? In my judgment it is low: you were suffering considerably from the breakdown of your marriage and your legitimate fears that your husband was having a relationship with your niece. The sanctity of your marriage (which you considered to be a profound commitment) had been violated; your dependence on your husband meant that you were alone and vulnerable; and you were suffering from a depressive disorder…"

The learned Judge accepted the Appellant's remorse was "genuine and heartfelt". Taking into account that the Appellant had spent nine months in custody on remand he did not think further punishment in prison was necessary and a three year community punishment order was imposed with conditions. Two of the conditions related to the Appellant's niece Dammika in addition she was required to co-operate with the probation service and to agree to an NHS psychiatric referral and to comply with the treatment recommended.

The Appellant was duly referred to Dr Amin a consultant Psychiatrist. On 29 November 2007 Dr Amin's Senior House Officer, after discussion with Dr Amin, reported that the Appellant had ceased any medication and was presenting normally. He advised a follow up three months later with a view to discharge if stable. Thus while there is no doubt that the Appellant was suffering from a depressive illness at the time of the offence that appeared to have resolved by this time.

The hearing in front of the Conduct and Competence Committee

There is a three stage process adopted in front of the Committee. First the relevant facts are found. In this case the fact of the Appellant's conviction was not in issue. Second the Committee consider whether by reason of the facts found the Appellant's fitness to practice was impaired. Here the Committee did find the Appellant's fitness was impaired and there was no challenge to that finding before me. However the remarks made in that part of the decision of the Committee are, it is submitted, relevant to my consideration of the case. The third stage is to consider sanction.

There is some indicative guidance provided on the appropriate sanction to assist panels in their task of deciding on the right sanction. Under "General Principles" panels must have regard to the public interest and the registrant's own interests. The public interest includes protection of the public; maintenance of public confidence in the profession and declaring and upholding proper standards of conduct and performance. The sanction must demonstrate in each case a considered and proportionate balance between the interests of the public and the particular registrant and the mitigating and aggravating factors in the particular case.

For the Committee to suspend a registrant (for up to the limit of one year) the guidance suggests misconduct but not fundamentally incompatible with continuing to be registered. Striking off is likely to be appropriate when the behaviour is fundamentally incompatible with being a registrant.

The matter came before the Committee on 12^th December 2007. The Committee was of course aware that following the Interim Decisions made on 5^th December 2006 and 5^th May 2007 the Appellant had returned to work and was working satisfactorily. As I have said the conviction was not in issue and impairment was found proved. In the reasons for that finding the Committee said:

"A registrant's fitness to practice is not only to be judged by reference to clinical ability or risk to patients. It is well established that conduct outside professional practice can and does have a bearing on a registrant's fitness to practice. (There was then a reference to the Code of Professional Conduct).

…

The panel has no doubt that the conviction here for the killing of her husband impairs her fitness to practice. This is not only because of the extremely serious nature of the offence, but because of the effect of such a conviction on the reputation of the profession and the need to uphold and maintain public trust and confidence in the profession and the NMC.

Furthermore, given the exceptional nature of the registrant's actions that led to the conviction and the evidence of emotional volatility seen today, this panel is not as sanguine as Mr Justice Fulford as to the level of risk the registrant may present. The panel notes the registrant is still serving her sentence and is currently under restrictions the judge imposed upon her."

Mr de Bono, who represented the Appellant before the Committee and before me, took exception to this final paragraph and understandably made the point that it appeared that the Panel were taking into account a risk posed by the Appellant based seemingly on no evidence at all. Moreover no opportunity had been given to deal with that point.

When it came to addressing the panel on sentencing Mr de Bono submitted that if the panel was minded to strike the Appellant off, or suspend her, then he would want an adjournment to produce further evidence of the Appellant's current mental condition. In fact no adjournment was granted by the panel. An application was made to adduce further evidence of the Appellant's condition to place before this court and by an order of Blake J. permission was granted. Since I have approached this matter on the basis that the Appellant is not a risk to the public generally or her patients I have not considered it necessary to spend time on that fresh evidence.

In giving their reasons for the sanction the panel said:

"In his submission, Mr de Bono referred to the panel's view, given its decision on impairment, as to the risk to the public presented by the registrant. The panel wishes to emphasize that the reason for finding of impairment was the serious nature of the offence and its effect on the reputation of the profession and the duty to uphold public trust and confidence in it.

The panel's additional comments that it was not as sanguine as Mr Justice Fulford as to the future risk presented by the Registrant was derived mainly from what the panel considers to be the exceptional nature of her actions in the face of a common situation (i.e. marital infidelity) rather than her long history of emotional volatility further as evidenced when appearing before us. The panel accepts that recounting these events is stressful and upsetting to the registrant. The panel makes clear that for the reasons already given, impairment, in its view is established even if the element of risk is discounted."

Pausing there, it was this last sentence that led Mr de Bono not to pursue an appeal against the Committee's finding in relation to impairment since as the panel said they came to the same conclusion even without taking into account risk.

The panel rejected the possibility of imposing no sanction and felt a caution was insufficient ^[1]. It then continued their sanction remarks:

"The panel did not consider a suspension order to be appropriate as it regards the conviction to be fundamentally incompatible with continuing to be registered. Furthermore it does not consider suspension to be sufficient sanction given the seriousness of the conviction.

The panel is satisfied that the behaviour here is fundamentally incompatible with being a registrant. The conviction for manslaughter – even though committed in a state of diminished responsibility – is a serious departure from the standards as set out in the code of conduct and demanded by the profession. The panel is of the firm view that confidence in the NMC would be undermined if the registrant were not struck off.

The panel further notes that the registrant has completed less than half the sentence imposed by the court, and takes into account the general principle set out by Mr Justice Newman in the case of Fleischmann v. General Medical Council to the effect that where a practitioner has been convicted of a serious criminal offence, she should not be permitted to resume her practice until she has satisfactorily completed her sentence.

The panel notes that the registrant has resumed working as a nurse following a decision by a previous practice panel. None the less this panel, having heard the full case, is satisfied that removal from the register is the only appropriate and proportionate sanction in all the circumstances of this case."

The panel then referred to the judgment of Lord Bingham in Bolton that I have set out above.

The Submissions on behalf of the Appellant

Mr de Bono submitted that while the panel had back-tracked and stated that they would have found impairment anyway it did not withdraw their remarks on their assessment of risk. What they did was to qualify it by saying that the risk is apparent not only from the Appellant's emotional volatility but also from her response to a common situation (i.e. marital infidelity).

In seeking to extricate themselves from one error Mr de Bono submits that they fell into another by comparing what happened to the Appellant as a common situation. I accept, without listing the various points made on the Appellant's behalf, that what she faced was not (fortunately) a common situation.

The arguments forcibly and cogently advanced by Mr de Bono can, I hope fairly be summarised as:

i) the sanction was excessive, and inconsistent with a previous decision and therefore wrong;

ii) insufficient weight was given to the Appellants current situation including testimonials regarding her work;

iii) the psychiatric evidence relating to the offence was ignored and the panel attributed too much responsibility to the Appellant for the commission of the offence;

iv) the panel wrongly assessed risk and public perception which was inconsistent with the interim decisions of the investigating committee;

v) the panel overlooked the Appellant's personal situation, the mitigation, her interests and her value as an employee.

In so far as the Committee were deciding that any conviction for manslaughter must result in striking off that, it was submitted, must be a wrong approach because the committee would be fettering its discretion to take into account all the material circumstances of the case. If there were saying that this conviction for manslaughter was so serious as requiring the Appellant to be struck off then the Committee must have failed to have regard for all the circumstances of this case.

In the case of Angela Dublin the Committee did not strike off a registrant who was imprisoned on four counts of causing death by dangerous driving. She received a caution for five years. However her actions were described by the Committee in that case as an "isolated incident which was not deliberate in the sense of it being an unexpected road traffic accident."

As to risk it was argued that the panel had clearly formed an adverse view on risk and yet all the evidence pointed against their being any significant risk. The remarks arising from the Appellant giving evidence before them failed to take into account the stress of giving evidence and having to recount the events which were clearly upsetting.

It was further argued that it was difficult for this committee to reach the view that the conviction was wholly incompatible with continuing registration when other committees on similar evidence had reached the view that there was no reason why the Appellant could not return to work. It is right to add here on the question of risk that the Appellant had already been back at work for a year and had received good reports.

If the Committee had in mind the loss to the profession of a valued member of staff they did not mention it.

As to the case of Fleischmann the remarks of Newman J. were obiter. That case was decided on its own very different facts and did not lay down any general principle. If the dicta is of application then this case clearly falls within the exceptions recognised by Newman J. in that case.

The Submissions on behalf of the Respondent

Ms McDonald for the Respondent drew my attention to the law which I have set out above and reminded me that the issue of sanction is essentially a matter of judgement for the panel. Only if the sanction is excessive or disproportionate can the court interfere.

The guidelines on sanction were clearly followed in this case and the panel reached the view that the behaviour, namely the conviction for killing her husband with an axe, was fundamentally incompatible with being a registrant.

The case of Bolton was very much in point here and it was submitted that the regulatory panel works with a broader canvass than a judge making remarks on sentencing, being concerned with the protection of the public and the reputation of the profession.

On the fact that at the interim stage the Appellant had been allowed to work it was pointed out that at that stage the Committee concerned do not have all the evidence and submissions which are available to the final determining body and therefore it was open to that body to reach a different conclusion after a full hearing. I had drawn to my attention some dicta of Davis J. in the case of Sheikh v. GDC [2007] EWHC 2972 (Admin) who said:

"Whether suspension is called for at the final hearing is, as it seems to me, a different matter, which should be decided by the Panel then hearing the case in the light of the arguments and evidence put before it."

Dealing with the case of Angela Dublin the point was made that there is a qualitative distinction driving dangerously and having an accident and killing someone with an axe.

The panel did have regard to the facts of the case in reaching their view that the conviction for manslaughter was incompatible with continued registration. It cannot be said to be controversial to find that the conduct of a nurse who has been convicted of killing someone with repeated blows of an axe, even when suffering from a depressive illness, is incompatible with remaining on the nurses register.

The Respondent does rely on the case of Fleischmann in the passage:

"As a general principle where a practitioner has been convicted of a serious offence he should not be permitted to resume his practice until he has satisfactorily completed his sentence. Only circumstances that plainly justify a different course should permit otherwise. Such circumstances could arise in connection with a period of disqualification form driving or time allowed by the Court for the payment of a fine. The rationale for the principle is not the that it can serve to punish the practitioner whilst serving his sentence, but that good standing in a profession must be earned if the reputation of the profession is to be maintained."

The Court's conclusions