England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		23 April 2013

The Hon Mr Justice Simon:

Introduction

1. This is the Appellant's statutory appeal against a decision to remove his name from the Respondent's register.
2. The Respondent (the 'NMC') is the statutory body responsible for the regulation of nurses and midwives in the United Kingdom, whose functions are governed by the Nursing and Midwifery Order 2001 ('NMO 2001'). Its duties include the maintenance of a register of all nurses and midwives entitled to practise in the United Kingdom; and its main objective is to safeguard the health and well-being of persons using or needing the services of those who are registered.
3. The statutory provisions relating to fitness to practise are set out in Part V of the NMO 2001 and the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 ('the 2004 Rules'). By Article 21(b) of the NMO 2001, the NMC is required to establish, and keep under review, effective arrangements to protect the public from persons whose fitness to practise is impaired.
4. Article 22 of the NMO 2001 sets out the types of allegation that may impair a nurse's fitness to practise: (i) lack of competence, (ii) misconduct, (iii) a conviction or caution in the United Kingdom for a criminal offence, (iv) physical or mental health and (v) a determination by another regulatory body.

Background

5. On 17 November 2008 the Appellant was convicted of Driving with Excess Alcohol, and on 6 April 2009, the NMC received notification of that conviction from the Chief Constable of West Midlands Police. Subsequently the NMC was notified that that the Appellant had also been convicted of an offence of Assault by Beating on 8 June 2009.
6. On 12 April 2010, the Appellant was made the subject of an interim suspension order on the grounds that such an order was necessary for protection of the public and otherwise in the public interest.
7. On 1 June 2011, the Investigating Committee of the NMC decided to refer the case to the Conduct and Competence Committee (the 'CCC'); and on 19 July 2011, the CCC directed a hearing of the allegations.
8. The Appellant requested that his case be listed for a preliminary meeting pursuant to Rule 18 of the 2004 Rules, as he wished to make an application to transfer the case to the Health Committee. On 5 January 2012, this application was considered at a preliminary meeting and was rejected. The case was listed for a second hearing to allow the Appellant to renew his application; and it was rejected at this further hearing on 28 February 2012 by the Chair of the CCC.
9. On 23 and 24 April 2012, a final hearing was held before a panel of the CCC. The Appellant attended and represented himself, as he has on this appeal.

The Approach of the Panel

10. In accordance with Rule 24 of the 2004 Rules, as amended by the Nursing and Midwifery Council (Fitness to Practise) (Amendment) Rules Order of Council 2007, and the principles set out in Cohen v General Medical Council [2008] EWHC 581 (Admin), the hearing before the CCC involved a three stage process: (1) a fact finding stage, (2) an impairment stage, and (3) a sanction stage, with each stage being separate and distinct.

(1) At the fact finding stage, the task of the panel was to consider the factual allegations set out in the heads of charge and decide on the evidence whether they were proved or not proved on the balance of probabilities. This was not a significant issue in the present case, since the Appellant admitted his convictions.

(2) At the impairment stage the task of the panel was to consider whether, in light of any facts found proved and any other relevant factors, the practitioner's fitness to practise was currently impaired.

(3) At the sanction stage the task was to determine what, if any, sanction to impose on the practitioner if the panel found that the practitioner's fitness to practise were impaired.

The hearing

11. At the outset of the hearing, the allegations of Drink Driving and the Assault were 'put' to the Appellant and he accepted that he had been convicted. The allegations were that, as a registered nurse:

He had been convicted at Birmingham Magistrates Court on 17 November 2008, of an offence of driving with excess alcohol; and had been sentenced to a Community Order, with a 12 month supervision requirement and a 3 year driving-ban.

He had been convicted at the same court on 8 June 2009, of assault by beating, contrary to s.39 of the Criminal Justice Act 1988, when he had again been sentenced to a 12 month Community Order.

The assault conviction had followed a trial.

12. Because he accepted the facts of the convictions, the panel found them to be proved.
13. The Panel then turned to the Stage 2 issue: whether his fitness to practise was currently impaired because of the convictions?
14. Before hearing submissions from each side, the NMC's case presenter made an application to adduce further evidence which, he argued, was relevant on the issue impairment. This further evidence related to a conviction for drink driving in 2005. Although the Appellant appears not to have objected to the evidence being adduced, the Panel sought legal advice and retired to consider the matter, before deciding to admit the evidence on the issue of impairment, giving its reasons for doing so. The rest of day 1 and part of day 2 was spent on a consideration of the remaining issues.
15. On 24 April (day 2) the Panel heard and rejected an application by the Appellant for an adjournment so that he could adduce the evidence of a Psychiatrist in order to show that he was no longer alcohol dependent. The panel rejected that application because the application was made very late and would have necessitated an adjournment. It was also unnecessary since the NMC did not contest that the Appellant was now free from alcohol.
16. The Panel having considered the evidence and the circumstances of the convictions, found that the Appellants fitness to practise was currently impaired. For convenience I have identified the more important passages in the transcript [A-E].
17. The Panel referred to the convictions and evidence and found breaches of §49 of the NMC Council Code of Conduct which requires a nurse to adhere to the law; and of §61 bringing the reputation of the nursing profession into disrepute.
18. So far as the drink driving offence was concerned, he had been 2½ times over the limit.
19. The assault had taken place 9 months after the previous offence.

[A] The particularly aggravating feature of this offence is that it was committed by a registered nurse on hospital premises and involved an assault on a member of the hospital staff. Again, we were told by Mr Chuah, it was an offence committed after he had been drinking heavily.

20. The Panel referred to the Appellant's argument that he had been, but was no longer currently, impaired.

[B] Damage has been caused to the reputation of the nursing profession and these are matters which are not easily capable of remediation.

Mr Chuah may have stopped drinking but the damage has been done. The Panel is of the view not only that these convictions demonstrate that his fitness to practice has been impaired but that, in all the circumstances, it remains impaired as at today's date.

Mr Chuah has provided no evidence of insight into his behaviour and, in the Panel's view has sought to minimise the seriousness of the offences.

The Panel has also concluded that although there is no evidence of actual harm to patients, there was the potential for harm to members of the public resulting from Mr Chuah's actions which led to his convictions.

The Panel has also concluded that public confidence in the nursing profession could not be properly maintained in the absence of a finding of impairment given the circumstances surrounding the convictions. The Panel has determined, therefore, that Mr Chuah's fitness to practise is currently impaired by reason of his convictions.

21. Having reached that conclusion, the Panel went on to consider Stage 3: the question of sanction; and referred to the available sanctions and the NMC Indicative Sanctions Guidelines:

[C] Under Article 29 of the [NMO 2001], the Panel can take the following actions in ascending order: no action; make a caution order for one to five years; make a condition of practice order for no more than three years; make a suspension order for a maximum of one year; or make a striking off order. The Panel has borne in mind that the purpose of a sanction is not to be punitive, though it is not inappropriate if it does have a punitive effect, as long as it is otherwise the appropriate and proportionate sanction.

The Panel has applied the principles of fairness, reasonableness and proportionality, weighing the interests of patients and the public with the Registrant's own interests and taking into account any mitigating and aggravating factors in the case. The public interests include the protection of patients, the maintenance of public confidence in the profession and declaring and upholding proper standards of conduct and behaviour. The Panel has also taken into account the current Indicative Sanctions Guidance. The Panel has noted that Mr Chuah was made subject to a caution order in 2000 which expired in 2005 and that he has previously been struck off the register following a conviction for an offence of fraud for which he served a prison sentence. The Panel has reminded itself, however, that it is not punishing Mr Chuah for his convictions or any of these previous matters. The Panel has kept at heart of its deliberations the public interest and the need to protect the public.

22. The Panel then considered each of the possible sanctions and concluded that the only appropriate sanction was striking off. In coming to this conclusion, the Panel noted:

[D] There is no evidence to suggest that the behaviour which led to the convictions has been repeated in the intervening period. However, the Panel considers that Mr Chuah's actions cannot be classed as isolated incidents given his previous history with the NMC and his past conviction in 2005 for drink driving.

Although Mr Chuah has expressed regret for his actions, the Panel considers that Mr Chuah continues to lack any real insight into the way his behaviour impacts on the public. The Panel's judgment is that he does not appear to appreciate the seriousness of his actions and the implications for the reputation of profession and the wider public interest.

The Panel has taken into account the fact that Mr Chuah did admit the charges as set out in the charge sheet at the outset of the hearing and that he has taken rehabilitative steps in so far as he has, he assures the Panel, remained free from alcohol since May 2011. The Panel has not however been provided with any independent evidence detailing how he achieved this. It has taken into account the two letters from Mr Chuah's GP but these do not give any account of any treatment that Mr Chuah has undertaken for his alcohol addiction.

23. When considering the availability of a 'conditions of practice order' or a 'suspension order', the panel added,

[E] The Panel next considered whether it would be sufficient to impose conditions on Mr Chuah's registration. Mr Chuah, in his evidence, submitted to the Panel that he has not practised as a nurse since 2008. The Panel consider that it would be impossible for it to be satisfied that it could devise practical and workable conditions that would meet the public interest concerns in this case. Even were it possible to devise appropriate conditions, the Panel is not satisfied that Mr Chuah would be able to abide by them. In the circumstances, the Panel took the view that conditions of practice would not be an appropriate sanction.

The Panel then went on to consider the sanction of suspension. In doing so, it noted the guidance contained in the Indicative Sanctions Guidance in relation to suspension. Given the very serious nature of the offences, and Mr Chuah's almost total lack of insight, the Panel concluded that a suspension order is not sufficient, nor appropriate to uphold standards and maintain public confidence in the nursing profession. The Panel has concluded that Mr Chuah's convictions are fundamentally incompatible with him remaining on the Nursing and Midwifery Council Register.

The Panel therefore concluded that the only appropriate and proportionate sanction in this case is a striking off order. The Panel believes Mr Chuah's actions have demonstrated a serious departure from the fundamental tenets of the profession as set out in the Code. In particular, we have in mind paragraphs 49 and 61 of the Code, to which we have already referred. In addition, public confidence in the nursing profession, and in the NMC as its regulator, would be undermined were the Panel not to impose a striking off order.

24. The decisions were notified to the Appellant by a letter dated 27 April 2012.
25. On 14 May 2012, the Appellant filed a notice of appeal in the Administrative Court at Birmingham. On 27 June he applied to have the case transferred to London, and that order was made on 24 July 2012. At that stage the Appellant had still not served any compliant Notice of Appeal.
26. The first time any basis for the challenge was advanced was in a Draft 'Skeleton Statement of Case' dated 20 February 2013. This was superseded by a further document headed 'Skeleton Argument' which was dated 12 March 2013. Neither document could be properly described as either a Skeleton or a form N 161 Notice of Appeal. Both documents were very long: the draft ran to 78 pages and the final document to 62 pages, and in both documents the paragraph numbering was highly idiosyncratic and the content contained assertion, evidence and very extensive quotation from authority whose relevance was not self-evident. More importantly the Notice of Appeal did not summarise (a) why it was said the panel's decision was wrong, or (2) why it was said that the decision was unjust, either because of serious procedural, or other, irregularity (see CPR Part 52.11(3)).

The Jurisdiction of the High Court on hearing an appeal

27. An appeal under Articles 29 and 38 of the NMO 2001 comes within Part 52 of the CPR and the Practice Direction. The Practice Direction provides that appeals under Article 38 of the NMO 2001 are by way of rehearing, and requires that the appeal to be supported by written evidence and, if the Court so orders, oral evidence.
28. CPR Part 52.11 (2) states that unless it orders otherwise, the appeal court will not receive oral evidence or evidence which was before the lower court.
29. It is unnecessary to set out in extensive detail the principles which should be applied by the Court on an Appeal because they are helpfully summarised by Foskett J in Sheill v General Medical Council [2008] EWHC 2967 (Admin) at [12.4-5], and can be described in summary so far as the present case is concerned.

(1) The Appellant must establish an error of law or fact (or both), or judgement, on the part of the Panel.

(2) Although the statutory appeal is technically a rehearing, in reality it involves a review of the evidence and the material before the Panel in accordance with the parameters set out in Gupta v GMC [2002] 1WLR 1691 and Ghosh v GMC [2001] 1 WLR 1915.

(3) Because it does not itself hear the witnesses give evidence, the Court must take into account that the Panel was in a far better position to assess the reliability of the evidence of live witnesses where it is in issue, see Stanley Burnton J in Threlfell v General Optical Council [2004] EWHC 2683 (Admin) at [21].

(4) Although the Court adopts the conventional test on hearing an appeal, Disciplinary Committees possess professional expertise that a Judge does not have. It follows that on an appeal from a Disciplinary Committee, the Court recognises that it is less qualified to assess evidence relating to professional practice and the gravity of any shortcomings, and it therefore accords the decision of the Committee an appropriate measure of respect, but no more: see Ghosh v General Medical Council [2001] 1 WLR 1915, at [33] and [34] and Preiss v General Dental Council [2001] 1WLR 1926 at [26 and [29].

The Court should also bear in mind the point referred to by Laws LJ in Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46 26].

(5) The importance of two principles: the preservation of public confidence in the profession and the consequential need to give special place to the judgement of the specialist tribunal.

The basis of challenge

30. Although the Appellant's Skeleton Argument set out 13 headings of complaint, in the course of the hearing, and perhaps in the light of Ms Browlee's helpful skeleton argument, he refined them and it is convenient to group some of them together since they raise similar overlapping bases for the challenge.
31. It is logical to start with the preliminary complaints before considering the substantive issues of Impairment and Sanction

Procedural Complaints

32. The Appellant raised various arguments about the involvement of, and the seating arrangements for, the Legal Assessor. In my view there is nothing in any of the points. I have looked at the transcript and it is clear that the Legal Assessor's part in the proceedings was confined to what was legitimate. At the commencement of the hearing, the Appellant was informed of the role of the Legal Assessor, including retiring with the Panel in order to assist with the drafting of any reasons, although not taking any part in making the decision. Additionally, after he gave his legal advice to the Panel in public and in the presence of both parties, the NMC case presenter and the Appellant were both given the opportunity to comment on the legal advice. At no stage during the proceedings did the Appellant object to the legal assessor retiring with the panel or (if it had been material) where he sat. I reject this ground of appeal.

Burden of Proof

33. Rule 30 of the 2004 Rules Order provides that where facts relating to an allegation are in dispute, the burden of proof to the appropriate civil standard rests on the NMC. In the present case, the Appellant accepted that he had been convicted and accordingly the factual allegations were found proved: the NMC's burden of establishing the relevant facts was discharged by the admissions.
34. The issue before the panel on 23 and 24 April 2012 was whether the Appellant's fitness to practise was currently impaired by reason of the convictions and, if so, what sanctions should be imposed. This was not a question of fact but a matter for the judgment of the Panel.

Legitimate Expectation

35. As it developed, the Appellant's argument focused on documents which were made available to the Panel and in particular a previous conviction for Driving with Excess Alcohol in 2005. The Appellant's complaint was not so much that a legitimate expectation had been confounded, but that the Panel should not have received the information at the stage that it did. That may be so, but it appears to have had no significant impact on the decision other than at the Sanction stage, when it was plainly relevant. In any event, neither side appears to have objected to the documents which the other side put before the Panel.

The refusal to allow the Appellant's application to adjourn in order to consult a Psychiatrist

36. In considering any application for an adjournment, the Panel was bound to have regard to Rule 32(4) of the 2004 Rules Order, which stipulates that the Panel should consider the public interest in the expeditious disposal of the case, the potential inconvenience caused to a party or any witnesses to be called by that party and fairness to the registrant.
37. The Panel clearly approached the application to adjourn with these considerations in mind. In its reasons for refusing the application, the panel noted

... the two convictions which are set out in the charges dated back to 2008 and 2009. This hearing comes as no surprise to Mr Chuah. There have been, we have been told, interim hearings and two pre-meetings. The panel agrees that Mr Chuah has had ample opportunity to obtain a psychiatric report. The panel cannot see that it is to the benefit of the public or the public interest to adjourn the hearing and to give Mr Chuah more time to obtain the report ... It does not seem to the panel that fairness to Mr Chuah requires the panel to adjourn the hearing to obtain a report from a consultant confirming Mr Chuah's abstinence, when his assertion to that effect has not been challenged'.

38. In my view, the Panel exercised its discretion properly and reasonably.

The Panel fell into error in finding (at Stage 2) that the Appellant's current fitness to practice was impaired by reason of his convictions.

39. The Appellant submitted the question of his current fitness to practice was a 'forward-looking' exercise, that he had been free of alcohol since May 2011, and that he was in a position to prove this by reference to medical reports. In this context he relied on a passage from the judgment of Silber J in Cohen v. GMC [2008] EWHC 581 (Admin) at [65] in which the Judge made clear that it was 'highly relevant' at the impairment (Stage 2) test:

... first that his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated.

40. The Appellant also referred to passages in the judgments of McCombe J in Azzam v GMC [2008] EWHC 2711 Admin at [51-2] to like effect.
41. It is clear that the Panel is bound to look at the issue of fitness to practise at the time that it has to form a view about the matter; and that this will involve a predictive exercise. However, it is a predictive exercise in which (as a matter of common sense) the Panel is entitled to have regard to the way in which a person has behaved in the past, see the judgment of Sir Anthony Clarke MR in Meadow v. GMC [2007] QB 462 at [32]:

In short, the purpose of [fitness to practise] proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past.

42. This importance of protecting the public has been emphasised in other cases. In Yeong v. GMC [2009] EWHC 1923 (Admin) Sales J at [51] considered the issue in the context of a finding of misconduct; and held that the disciplinary panel was entitled,

... to have regard to the public interest in the form of maintaining public confidence in the medical profession generally and in the individual medical practitioner when determining whether the particular misconduct on the part of that medical practitioner qualifies as misconduct which currently impairs the fitness to practice of the practitioner.

He added at [52]

... where [a disciplinary panel] considers that fitness to practise is impaired for such reasons, and that a firm declaration of professional standards so as to promote public confidence in that medical practitioner and the profession generally is required, the efforts made by the practitioner to address his problems and reduce the risk of recurrence of such misconduct in the future may be of far less significance than in other cases, such as those involving clinical errors or incompetence.

43. It follows that past conduct may be found currently to impair fitness to practice despite steps taken to remedy the conduct. As Cranston J put it in Cheatle v. GMC [2009] EWHC 645 (Admin) at [21]

The doctor's misconduct at a particular time may be so egregious that, looking forward, a panel is persuaded that the doctor is simply not fit to practise medicine without restrictions, or maybe at all. On the other hand, the doctor's misconduct may be such that, seen within the context of an otherwise unblemished record, a Fitness to Practise Panel could conclude that, looking forward, his or her fitness to practise is not impaired, despite the misconduct.

44. In CHRE v. NMC and Grant [2011] EWHC 927 (Admin) at [74] Cox J made an observation to similar effect in the context of misconduct.

In determining whether a practitioner's fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.

45. In the light of the above, the Panel was fully entitled to reach the conclusion that the Appellant's current fitness to practice was impaired by reason of his convictions for the reason sets out at [B] above. I would add that even by itself the conviction of a nurse for carrying out a drunken assault in a hospital could properly have been treated as the type of offence which justified the finding of current impairment. It is common knowledge that nurses and other medical staff are themselves victims of gratuitous violence from patients and other visitors to hospitals.

Sanctions

46. The Appellant made a number of submissions whose effect was that the 'Striking-off Order' was wrong.
47. First, he submitted that the 'Striking-off Order' was plainly wrong, in circumstances where he had kept away from alcohol for 11 months before the disciplinary hearing and has remained alcohol free since that time. He pointed out that the effect of his appeal is that he has remained suspended and the effect of the 'Striking-off Order' will not take effect until the appeal process is concluded. Accordingly, it will be 5 years from such date before he will be able to apply for reinstatement.
48. Secondly, he submitted that in considering the two particular sanctions, 'Conditions of Practice Order' and 'Suspension Order' the Panel failed to appreciate that there was an additional effect which might be achieved by the operation of Article 30 of NMO 2001. This provides that where a or 'Suspension Order' is made under Article 29(5)(b) or a 'Conditions of Practice Order' is made under Article 29(5)(c), the CCC shall review the order and, in the case of a 'Suspension Order', may extend it for not more than one year at a time.
49. Thirdly he submitted that the Panel had failed to explain why a 'Conditions of Practice Order' was not an appropriate sanction.
50. In response, Ms Brownlee referred to the decision of the Court of Appeal in Bolton v Law Society [1994] 1 WLR 512, at 518-519, where Sir Thomas Bingham MR endorsed the principle that it would require a very strong case to interfere with a sentence imposed by a disciplinary committee, which is best placed for weighing the seriousness of professional misconduct. That a sanction might seem harsh, but nonetheless be appropriate, could be explained by the primary objects of sanctions imposed by disciplinary committees. One object was to ensure that the offender did not repeat the offence; the other, indeed the fundamental, objective was to maintain the standing of the profession.
51. In my view this should be the approach of a Court hearing a statutory appeal against a sanction imposes, subject to two points. First, although the Court should accord an appropriate measure of respect to the judgment of the Panel as to the sanction necessary to maintain professional standards and provide adequate protection for the public, it should not defer to the judgement more than is warranted by the circumstances. The Court should decide whether the sanction was appropriate and necessary in the public interest, or excessive or disproportionate, see Ghosh (referred to above) at [34]. Secondly, the Court is entitled to interfere if it concludes that the sentencing decision was 'clearly inappropriate', see Law Society v. Salsbury [2008] EWCA (Civ) 1285. This test is not dissimilar to the test which is applied by the Court of Appeal (Criminal Division) on an appeal against sentence in the Crown Court. The sentence will be quashed where the Court considers the sentence to be either manifestly excessive or wrong in principle.
52. The Striking-off order (with a 5-year minimum period before the Appellant could apply for readmission) might be regarded as harsh, although (in part) this is a consequence of the limited choice of sanction available to a panel. However, as Sir Thomas Bingham MR observed in Bolton v. Law Society, a disciplinary panel is better able than the Court to weigh up the seriousness of professional misconduct.
53. Extract [C] of the Transcript shows that the Panel directed itself on the importance of a fair and proportional approach, which properly weighed the relevant factors. It is also clear that the Panel took proper legal advice on the Sanctions available and took account of the Indicative Sanctions Guidance, which forms the basis of a consistent approach to the imposition of sanctions. It took into account the background, which included a previous order of striking-off and the previous conviction for Drink-driving, and proceeded logically in considering the suitability of each available sanction starting with the least serious. The Panel gave sufficient and compelling reasons why an order for a 'Conditions of Practice Order' was not appropriate, since it was neither proportionate nor practicable to attempt to formulate conditions, for example, relating to any further criminal convictions. It also explained why it thought that a Suspension Order was an insufficient sanction. In my view this approach does not give rise to a legitimate complaint.
54. Although I accept that the sanction imposed by the Panel was severe, I am not persuaded that it was either wrong in principle, 'clearly inappropriate' or 'plainly disproportionate.' The Panel were entitled to the view that the nature of the assault (committed in hospital by a nurse while drunk) was such that only a striking-off order was appropriate. The position might have been different if the Appellant had been a nurse of previously impeccable character and had been able to demonstrate that the offences were entirely exceptional. However, this was not the case. Looking at the matter broadly it was open to the Panel to regard the two convictions, in the light of the background, as fundamentally incompatible with remaining on the Register.

Conclusions

55. Accordingly, the appeal must be dismissed.