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
		29th January 2014

The Hon Mr Justice Turner:

INTRODUCTION

1. This is an appeal against a decision of the Conduct and Competence Committee ("the Committee") of the Nursing and Midwifery Council ("the Council").

BACKGROUND

2. The appellant, Mr Iseghehi, is a psychiatric nurse. In the afternoon of 22 August 2010 he was driving along the A11 near Attleborough, Norfolk. Ahead of him in the outside lane was another vehicle being driven by one Leanne Hagerty. She was returning from a shopping expedition with her friend and front seat passenger, Victoria Beckenham. As Mr Iseghehi approached her vehicle, he grew frustrated and drove far too close. When Ms Hagerty moved over to the inside lane he began to overtake her. When the cars were parallel he swore and gesticulated in her direction. Thereafter, Mr Iseghehi steered twice into the inside lane in front of Ms Hagerty's vehicle. His driving was dangerous and intimidatory. On the second occasion upon which he encroached onto Ms Hagerty's lane the vehicles made contact and both drivers lost control. Mr Iseghehi had not intended to hit Ms Hagerty's vehicle but his aggressive, arrogant and threatening manoeuvres gave rise to an obvious and serious risk that there would be a collision.
3. By good fortune, no serious physical injuries were sustained but the incident was terrifying for Ms Hagerty and her passenger. The car in which they were travelling turned over and Ms Beckenham had to be cut out. It is little wonder that she remained distressed for a considerable period in the aftermath of the accident.
4. Mr Iseghehi was prosecuted for dangerous driving. He pleaded not guilty. He admitted much of what was alleged against him including the fact that the standard of his driving and fallen below that of a reasonable driver. However, he did not admit that his driving was dangerous. The jury, predictably, convicted him and he was sentenced to 15 months imprisonment.
5. Mr Iseghehi served his time and was released from prison in July 2012. Inevitably, as a nurse, he faced a disciplinary hearing before the Committee in respect of his serious misconduct. The Committee concluded that the appropriate sanction was for Mr Iseghehi to be struck off. An interim suspension order was made pending appeal to this court.

THE LAW

6. The appeal to this court is brought pursuant to Article 38 of the Nursing and Midwifery Order (2001) which provides:

"…(1) An appeal from–

(a) any order or decision of … the Conduct and Competence Committee … shall lie to the appropriate court … "

…The court may–

(a) dismiss the appeal;

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

(c) substitute for the decision appealed any other decision the Practice Committee concerned … could have made; or

(d) remit the case to the Practice Committee concerned or Council, as the case may be, to be disposed of in accordance with the directions of the court … "

7. The proper approach to the disposal of appeals brought under Article 38 was recently summarised by Haddon-Cave J. in Ajala v Nursing and Midwifery Council [2012] EWHC 2976 (Admin) in the following terms:

"19 Appeals of this nature are conducted pursuant to CPR 52 which provides CPR 52.11 as follows:

(1) Every appeal will be limited to a review of the decision of the lower court unless –

(a) a practice direction makes different provision for a particular category of appeal; or

(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

(2) Unless it orders otherwise, the appeal court will not receive –

(a) oral evidence; or

(b) evidence which was not before the lower court.

(3) The appeal court will allow an appeal where the decision of the lower court was –

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

(4) The appeal court may draw any inference of fact which it considers justified on the evidence.

(5) At the hearing of the appeal a party may not rely on a matter not contained in his appeal notice unless the appeal court gives permission.

20 The Court of Appeal in Meadow v GMC [2007] QB 462, considered the correct approach to be taken by appeal courts from statutory health care regulators such as the General Medical Council or the Nursing and Midwifery Council. Auld LJ said this at paragraph 197:

"On an appeal from a determination by the GMC, acting formerly and in this case through the FPP …, 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 deserve respect;

ii) The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides;

iii) The questions of primary and secondary fact and the over-all value judgement to be made by tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers."

21 More particularly, in relation to the approach of the courts on appeal is very clear. On an appeal against sanction an appellant must establish not just that the order was "wrong" but was "excessive and disproportionate" (see Ghosh v General Medical Council [2011] WLR 1915) or "outside the range of what could be regarded as reasonable" (see R (on the application of Devon) v General Medical Council [2005] EWHC 174 ). See also generally Low v General Osteopathic Council [2007] EWCA 2839 and in particular paragraph 17)."

GUIDANCE

8. The Committee is assisted in its function of deciding what sanction to impose in any given case by the "Indicative sanctions guidance to panels" the introduction to which provides:

"Role and status of the indicative sanctions guidance

1 This guidance has been developed by the Nursing and Midwifery Council (NMC) for use by its Conduct and Competence Committee (CCC) and Health Committee (HC) when considering what sanction to impose following a finding that a nurse or midwife's fitness to practise is impaired. This guidance is also to be used when a panel is reviewing a previously imposed order.

2 This guidance is an authoritative statement of the NMC's approach to sanctions. It is not an alternative source of legal advice. When appropriate, the legal assessor will advise the panel on questions of law, including questions about the use of this guidance and the approach it should take. Panels must always have in mind that each case is different and should be decided on its unique facts and merits."

9. In R (on the application of Abrahaem) v GMC [2004] EWHC 279 (Admin) the court held:

"Those are very useful guidelines and they form a framework which enables any tribunal, including this court, to focus its attention on the relevant issues. But one has to come back to the essential exercise which the law now requires in what lies behind the purpose of sanctions, which, as I have already pointed out, is not to be punitive but to protect the public interest; public interest is a label which gives rise to separate areas of consideration."

10. Paragraph 16 of the Guidance provides that "the public interest includes amongst other things:

"16.1 protection of patients and others

16.2 maintenance of public confidence in the professions and the regulatory body

16.3 declaring and upholding proper standards of conduct and behaviour."

11. The Guidance goes on to deal with particular considerations including criminal convictions and makes specific reference to the judgment of Newman J. in CHRE v GDC and Fleischmann [2005] EWCH 87 (Admin):

"…as a general principle, where a practitioner has been convicted of a serious criminal offence or offences he should not be permitted to resume his practice until he has satisfactorily completed his sentence. Only circumstances which plainly justify a different course should permit otherwise. Such circumstances could arise in connection with a period of disqualification from driving or time allowed by the court for the payment of a fine. The rationale for the principle is not 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"

12. The guidance helpfully sets out a list of the sanctions available to the Committee and identifies the circumstances in which any given level of sanction is likely to be appropriate. It provides that all the sanctions should be considered but starting with the least restrictive.
13. In his Grounds of Appeal Mr Iseghehi realistically accepts that the seriousness of his misconduct justified at least the imposition of a period of suspension. Thus no purpose would be served by considering the Guidance applicable to less restrictive sanctions. Those parts of the Guidance relating to suspension and striking off are, however, directly relevant and I set them out in full.

"Suspension order

69 A suspension order directs the Registrar to suspend the nurse or midwife's registration for a period of up to one year. They may not practise as a registered nurse or midwife during the period that the order is in force. A suspension order must be reviewed before its expiry.

Key considerations

69.1 Does the seriousness of the case require temporary removal from the register?

69.2 Will a period of suspension be sufficient to protect patients and the public interest?

70 When considering seriousness, the panel should take into account the extent of the departure from the standards to be expected and the risk of harm to the public interest caused by that departure, along with any particular factors it considers relevant on each case.

71 This sanction may be appropriate when some or all of the following factors are apparent (this list is not exhaustive):

71.1 A single instance of misconduct but where a lesser sanction is not sufficient.

71.2 The misconduct is not fundamentally incompatible with continuing to be a registered nurse or midwife in that the public interest can be satisfied by a less severe outcome than permanent removal from the register.

71.3 No evidence of harmful deep-seated personality or attitudinal problems.

71.4 No evidence of repetition of behaviour since the incident.

71.5 The panel is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour.

71.6 In cases where the only issue relates to the nurse or midwife's health, there is a risk to patient safety if they were allowed to continue to practise even with conditions.

In cases where the only issue relates to the nurse or midwife's lack of competence, there is a risk to patient safety if they were allowed to continue to practise even with conditions.

72 When imposing a suspension order the panel, if it considers it appropriate, should set out in clear and unambiguous terms any expectations it has or actions the nurse or midwife could take that would assist the review panel when it considers the case before the expiry of the order.

73 The courts have upheld decisions to impose suspension orders where the professional is still serving a non-custodial sentence for a criminal offence on the grounds that professionals should not be permitted to practise while still serving a sentence. Equally, suspension may be justified for the purposes of conveying a clear public message of the importance of fundamental standards of professional conduct.

Striking-off order

74 A striking-off order results in the removal of the nurse or midwife's name from the register, thus preventing them from working as a registered nurse or midwife. They may not apply for restoration until a period of five years has elapsed since the striking-off order was made. An application for restoration will not be granted unless a panel of the CCC or HC is satisfied that the applicant meets the requirements for admission to the register and in addition, is a fit and proper person to practise as a nurse or midwife.

Key considerations

74.1 Is striking-off the only sanction which will be sufficient to protect the public interest?

74.2 Is the seriousness of the case incompatible with ongoing registration (see paragraph 70 above for the factors to take into account when considering seriousness)?

74.3 Can public confidence in the professions and the NMC be sustained if the nurse or midwife is not removed from the register?

75 This sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a registered professional, which may involve any of the following (this list is not exhaustive):

75.1 Serious departure from the relevant professional standards as set out in key standards, guidance and advice including (but not limited to):

75.1.1 The code: Standards of conduct, performance and ethics for nurses and midwives

75.1.2 Midwives rules and standards

75.1.3 Standards for medicines management

75.1.4 Record keeping: Guidance for nurses and midwives

75.1.5 Guidance for the care of older people

75.1.6 Raising and escalating concerns: Guidance for nurses and midwives

75.2 Doing harm to others or behaving in such a way that could foreseeably result in harm to others, particularly patients or other people the nurse or midwife comes into contact with in a professional capacity, either deliberately, recklessly, negligently or through incompetence, particularly where there is a continuing risk to patients. Harm may include physical, emotional and financial harm. The panel will need to consider the seriousness of the harm in coming to its decision

75.3 Abuse of position, abuse of trust, or violation of the rights of patients, particularly in relation to vulnerable patients

75.4 Any serious misconduct of a sexual nature, including involvement in child pornography

75.5 Any violent conduct, whether towards members of the public or patients, where the conduct is such that the public interest can only be satisfied by removal

75.6 Dishonesty, especially where persistent or covered up

75.7 Persistent lack of insight into seriousness of actions or consequences

75.8 Convictions or cautions involving any of the conduct or behaviour set out above

76 The courts have supported decisions to strike off healthcare professionals where there has been lack of probity, honesty or trustworthiness, notwithstanding that in other regards there were no concerns around the professional's clinical skills or any risk of harm to the public. Striking-off orders have been upheld on the basis that they have been justified for reasons of maintaining trust and confidence in the professions…"

THE DECISION OF THE COMMITTEE

14. The Committee found that the registrant's fitness to practise was currently impaired and stated that:

"… The Panel's view is that Mr Iseghehi's fitness to practise was clearly impaired at the time of the incident in August 2010. The offence was serious and it was caused by Mr Iseghehi's behaviour and attitude. The Panel noted the references provided, which made it clear that Mr Iseghehi was highly regarded as a nurse, and it recognises that it has heard nothing to suggest that there has ever been a problem with the nursing care he provided.

However, in the Panel's view, a conviction such as this is extremely damaging to the reputation of the profession and is therefore hard to remedy. The evidence before the Panel did not satisfy the Panel as to Mr Iseghehi's insight. It has heard nothing to explain why he behaved as he did on the day in question and nothing which would reassure it that such behaviour will not be repeated or that Mr Iseghehi understands the seriousness of his action."

15. At the sanction stage no further evidence was submitted. The Committee decided to impose a striking off order and stated:

"It noted that the imposition of a suspension order would address any public protection concerns and might allow Mr Iseghehi to undertake some action to remedy his impairment, which might allow his eventual return to nursing practice. However, the Panel concluded that a suspension order would not be sufficient to address the wider public interest in this case.

Mr Iseghehi's actions on 22 August 2010 were not a momentary aberration. After remonstrating with the driver of the other vehicle, he twice deliberately drove into its path. His actions had the potential to kill or seriously injure others. As a mental health nurse, Mr Iseghehi might be expected to be able to remain calm despite any provocation, but on this occasion he let his anger get the better of him, with highly undesirable results both for himself and others. The Panel has seen and heard little to suggest that this has been remedied.

The Panel concluded that a striking-off order should be imposed on all three available grounds: for the protection of the public; as the conviction is fundamentally incompatible with remaining on the nursing register; and in order to maintain public confidence in the profession and the regulatory process."

APPLYING THE GUIDANCE

16. Within the context of the Guidance relating to suspension orders I reach the following conclusions:

i) This was a single instance of misconduct where a lesser sanction than suspension was not sufficient.

ii) However, the misconduct was not fundamentally incompatible with Mr Iseghehi continuing to be a registered nurse. The public interest can be satisfied by a less severe outcome than permanent removal from the register. To the extent that the Committee formed a different view, I disagree. I reach this conclusion on the basis that, although Mr Iseghehi behaved appallingly on the occasion of his offending, he did not intend to cause injury. Indeed, no-one, fortunately, appears to have suffered lasting or physical injury.

iii) There was no evidence of harmful deep-seated personality or attitudinal problems. Mr Iseghehi had worked as a nurse for some years before the incident with no blot on his character and no record of concerns relating to his abilities to keep calm in the face of the inevitable challenges of his job. There was a wealth of supportive evidence in the form of letters from those who had direct experience of his work that he was unfailingly patient and calm with his patients at all times. I take into account the content of these letters not by way of mitigation but as an indication of the how the public interest might best be served in adjudicating on the issues raised in this appeal.

iv) There was no evidence that Mr Iseghehi had been involved in any similar behaviour since the incident. I disagree with the Committee's finding that there is no evidence that Mr Iseghehi has remedied the attitudes which gave rise to his offending. While he was on licence following his release from custody he attended all the appointments made for him. The main area of work carried out with him by his supervising officer from the Probation Service was to raise his awareness of victims both those affected directly by his offence and more generally. Mr Iseghehi successfully completed a victim awareness course following a number of group sessions in which he is recorded to have "engaged and participated well". During the course of the hearing of the appeal I had the unusual advantage of hearing from the appellant which the Committee did not. He told me that, since his release from prison, he had occupied himself doing voluntary charity work for the community. His attitude towards his offending was one of unsolicited and, in my view, genuine contrition.

v) I am satisfied on the evidence that Mr Iseghehi has insight and does not pose a significant risk of repeating his bad behaviour.

17. Ultimately, I take the view, notwithstanding the deference I owe to the specialised experience of the Committee, that this is not a case where striking-off is the only sanction which would be sufficient to protect the public interest. I am satisfied that public confidence in the profession and the Council can be sustained if Mr Iseghehi is not removed from the register and conclude that the Committee was wrong to hold otherwise. The sanction of striking off was disproportionately high notwithstanding the breadth of the range of legitimate opinions on the issue.
18. In reaching this conclusion, I have not been helped by examples of other disciplinary decisions concerning criminally bad driving. These sorts of cases are particularly fact sensitive and the background circumstances of none of those to which my attention was drawn bear a sufficiently close resemblance to the facts of this case to afford any assistance.

CONCLUSION

19. In the circumstances, I allow this appeal and order that the disciplinary sanction to be imposed on Mr Iseghehi is one of suspension for twelve months. On any mandatory or discretionary review, I would expect that particular emphasis would be placed upon whether or not he has managed to continue to avoid any recurrence of the serious loss of control which lay behind his conviction for dangerous driving.