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
		9 July 2010

1. MR JUSTICE MITTING: Mr Parkinson appeals against the decision of the Nursing and Midwifery Council's Fitness to Practise Panel of 4 August 2009 directing that his name be erased from the register of those entitled to practise as nurses. He was a registered mental health nurse. He was employed for 19 years at Mersey Care National Health Service Trust. He also, unknown at the time to the Trust, had a second job, also as a nurse, at Blair House Nursing Home. There was nothing wrong in that, although he might have been well advised to have told his principal employers about his second employment.
2. His employers at Blair House knew about his employment for the Trust. It occurred to them, when the Working Time Directive came into force, that by doing two jobs he might be infringing the Directive. So they contacted the Trust to find out the hours that he worked for the Trust. This, unfortunately for him, revealed a set of facts which led to the proceedings which led to his erasure.
3. He had had in 2005 extensive periods of sickness. Under his contract of employment with the Trust, he was entitled to be paid at the full rate for six months and at half rate for six months in any one employment year. He was required to self-certify for the first few days, and thereafter to support a period of absence due to sickness with a general practitioner's certificate. He had a period of sick leave from 31 May to 5 June 2005, during which time he worked two shifts at Blair House on 1 and 5 June. He had a further period of sickness from 7 September to 12 September 2005, and worked one shift at Blair House on 12 September. He had a further period of sickness from 31 October 2005 to 3 January 2006. During that time he worked 11 shifts at Blair House in October, November and December. In consequence, as is not now and indeed never has been disputed, he received sick pay from the Trust for at least some of that time to which he was not entitled.
4. The charges against him which led to his erasure recited all of those facts. They went on to recite that the conduct which I have described was dishonest, and that, in consequence, his fitness to practise was impaired by reason of misconduct.
5. Some four years or so went by when he heard little more about it. He resigned from his employment with the Trust, but continued to work for Blair House. Proceedings were eventually taken before the Panel, and a hearing was properly fixed for 3 and 4 August 2009.
6. Mr Parkinson, as he now accepts, adopted a stance of putting his head in the sand, or hoping that the troubles would go away. Unfortunately for him, although he responded in writing to the charges, he did not attend at the hearing. Indeed, he sent an e-mail on the first day of the hearing, saying that he was not going to attend. The hearing proceeded. The evidence, which was substantially uncontroversial although there were one or two aspects of the evidence which Mr Parkinson might have challenged had he been present, proved the basic facts which I have recited.
7. The Panel went on to make three determinations. First of all, it decided that the basic facts were proved, and that they demonstrated dishonesty. They placed reliance on the forms of words that appeared on the certificates that he presented to the Trust to certify that he was unfit for work. They applied the customary Ghosh test to the issue of dishonesty, and concluded:

"The Panel considered that by the standards of an ordinary honest member of the public the Registrant's actions were dishonest.

The Panel believe that the Registrant was aware that what he was doing would be considered to be dishonest by the standards of ordinary honest persons. This is evidenced by Mr Moran's statement in which he states that the Registrant was reluctant to provide him with details of his other employment with the Trust. The Panel concluded that this was because the Registrant anticipated that his conduct may be discovered and this may lead to repercussions."

8. It is possible that had he attended the hearing the Panel might not have expressed itself in quite those words, but it is inconceivable, given the simple facts which I have recited, that they would not have concluded that which Mr Parkinson now freely admits: that his actions were dishonest.
9. On the second day of the hearing the Panel went on to determine whether his fitness to practise was impaired. They recited passages from the Code of Professional Conduct, which unsurprisingly drew attention to the need for nurses to act in such a way as to justify the trust and confidence which the public had in them and to uphold the good reputation of the profession. They concluded, again unsurprisingly, that the conduct which they had found to be proved were not consistent with the standards of integrity, honesty and propriety expected of a nurse.
10. They went on to consider the written material which he supplied, and concluded that it was clear to them that Mr Parkinson-

"... had not acknowledged the seriousness of the charges and sought to justify his actions. There was no evidence that the Registrant had taken any steps to address his behaviour or to make amends for his actions such as repaying the amounts paid to him by the Trust during the periods of sickness absence when working for Blair House. The Panel therefore had grave concerns that there may be a repetition of this conduct and so came to the conclusion that the Registrant's fitness to practise is currently impaired."

11. On the material which it had, those conclusions were plainly open to the Panel. Again, had Mr Parkinson attended the hearing, they might not have expressed themselves in precisely those words, but I am satisfied that they would have been bound to conclude that, by reason of his dishonesty, his fitness to practise was then currently impaired.
12. The Panel went on to make what Mrs Capgras, for the Council, accepts was an error of fact:

"It would appear that Mr Parkinson was dispensing and laying out residents' medication well in advance of it actually being administered to the patient, and received a verbal warning for that. There is also reference to the fact that Mr Parkinson was invited to a meeting and formally spoken to about the amount of time he was taking off work at Blair House Nursing Home at very short notice."

13. There was in fact no basis for the second comment, but, as Mr Parkinson accepts in his realistic submissions today, that error was minor and could have made no difference to the Panel's conclusion.
14. It went on to consider finally and separately the question of sanction. It noted that there had been a belated admission of working whilst on sick leave, but also that there had been "no admission that this was dishonest". That was strictly correct. Mr Parkinson today freely admits dishonesty. That is because he now has had the courage to face up to the consequences of his actions in 2005. It cannot be said, however, that the Panel was wrong to note the lack of admission at that stage.
15. The Panel correctly went on to observe that his actions had not put patients at risk, but had deprived the NHS of resources. It acknowledged that there were financial pressures on Mr Parkinson, and that there was nothing wrong about working for two employers simultaneously. It went on to state, correctly as was fact at the time, that he had shown no remorse and did not apologise.
16. Harshly but, in the light of the material that they had, not unreasonably, they concluded that he had "adopted avoidance tactics not only with his two employers but also the NMC. There had been no facing up to the ramifications of his behaviour". Again, as of now Mr Parkinson has faced up to the ramifications of his behaviour. It is deeply unfortunate that he did not attend before the Panel to do so then.
17. The Panel went on to consider that it could not formulate a set of conditions which would address adequately the question of dishonesty. Its conclusion was stated in three sentences.

"The Panel considered that the Registrant's actions which had been over an extended period of time were fundamentally incompatible with remaining on the Register. The Registrant's dishonesty had brought the professions into disrepute and had undermined public confidence in the NMC and his fellow Registrants. The Panel therefore came to the conclusion that the only sanction that would maintain public confidence and the public interest was a striking off order."

Accordingly, it ordered erasure.

18. I can only allow Mr Parkinson's appeal on one of two grounds: firstly, that there was a serious procedural irregularity which vitiated the fairness of the proceedings -- there was none, as he accepts; secondly, that the decision of the Panel was wrong. On the information which it had, I cannot say that the decision of the Panel was wrong. It was stern certainly, but it was properly stern because, as the Panel noted, one of its tasks is to maintain public confidence in the professions. A nurse found to have acted dishonestly is always going to be at severe risk of having his or her name erased from the register. A nurse who has acted dishonestly, who does not appear before the Panel either personally or by solicitors or counsel to demonstrate remorse, a realisation that the conduct criticised was dishonest, and an undertaking that there will be no repetition, effectively forfeits the small chance of persuading the Panel to adopt a lenient or merciful outcome and to suspend for a period rather than to direct erasure. Unhappily, as Mr Parkinson acknowledges, he did not take that course. Had he done so, it is possible, I say no more than that, that he might have persuaded the Panel to exercise leniency in his favour.
19. He has impressed me as a man who now faces up to what he has done. He acknowledges that it was seriously wrong, and I am satisfied that he would, if he were financially able to do so, make recompense to the Trust for the financial loss that it has suffered, and that there would be no repetition of his dishonest conduct in the future, insofar as these things can ever be predicted.
20. Although I have, as is evident from the remarks I have expressed, considerable sympathy for the position in which Mr Parkinson finds himself, I must administer the law. I cannot conclude, on the material which I have reviewed, that the Panel was wrong to order erasure. It follows, therefore, that this appeal must be dismissed. Mr Parkinson's only hope for the future of returning to the profession which he clearly loves is that he should, when five years have elapsed in August 2014, apply for restoration to the register. That is the only course that is open to him.
21. Mrs Capgras, are there any other applications?
22. MRS CAPGRAS: My Lord, there is an application for costs. I do know if my Lord has seen the schedule.
23. MR JUSTICE MITTING: I have seen the schedule. You know what Mr Parkinson has said about his financial position. Is this an application that is pursued?
24. MRS CAPGRAS: It is, my Lord.
25. MR JUSTICE MITTING: Mr Parkinson, one of the drawbacks of litigation is that those who fail end up being ordered to pay the costs of the litigation. There is a schedule which should have been served on you.
26. APPELLANT: I think I have seen it.
27. MR JUSTICE MITTING: Is there anything you want to say either about the fact of an order for costs, if one is to be made, or about the amounts set out in the schedule?
28. APPELLANT: There is not much I can say. I just haven't got money to pay. I don't know where its going to come from. I can't dispute it. I'm in no position to dispute it, really.
29. MR JUSTICE MITTING: Mrs Capgras, the costs claimed of drafting the skeleton argument include a good deal that was helpful to me about the timing of the notice of appeal, but was an issue that ultimately you conceded should be determined in favour of the appellant, and so I was not called upon, thankfully, to decide it. Helpful though it was, it might seem a little unfair to saddle a litigant in person, who would be quite unaware of the complexities, and apart from a minor error, did his best to comply with the procedure, with costs of explaining why he was right.
30. MRS CAPGRAS: I would accept that, my Lord.
31. MR JUSTICE MITTING: Can you give me a broad-brush indication of what should be deducted on that account?
32. MRS CAPGRAS: My Lord, perhaps half the time of drafting the skeleton was dedicated to the preliminary legal issue, so it would be reduced to six hours. Indeed, having said that, the research, which was marked as three hours by a trainee solicitor, that was in relation to the legal issue as well.
33. MR JUSTICE MITTING: So if we divide £2,856 by 2 and add £372 to it, that is the appropriate reduction.
34. MRS CAPGRAS: Yes.
35. MR JUSTICE MITTING: I make that the suspiciously round sum of £1,800.
36. MRS CAPGRAS: My Lord, that sounds fine to me.
37. MR JUSTICE MITTING: I order Mr Parkinson to pay the respondent's costs of the appeal, which I assess in the sum of £4,834. Thank you, Mrs Capgras, for your assistance, and Mr Parkinson for the moderation with which you have expressed your views.