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
		26 November 2014

1. THE DEPUTY JUDGE: In this matter, I am now to give judgment in relation to an appeal to appeal pursuant to Article 38 of the Nursing and Midwifery Order 2001. The Appellant, Kwaku Bawuah Asare-Konadu, admitted charges of failing to disclose other employment and working whilst on special leave before the relevant panel.
2. Charges alleging shouting and acting in an aggressive manner towards a colleague and failing to disclose the fact of dismissal from other nursing employment and the existence of a fitness to practise investigation when employed as a temporary bank nurse were found proved as was impairment of fitness to practise by reason of misconduct and dishonesty (in relation to the failure to disclose charges).
3. There is no appeal against the findings which I have just summarised. The penalty imposed in relation to all matters was striking off and it is against that sanction that the Appellant now appeals. This appeal by way of rehearing rather than review. It is not confined to points of law.
4. I note and follow the approach endorsed by Lloyd-Jones J as he then was in Fouche v Nursing and Midwifery Council [2011] EWHC 113 (Admin):

"The court has consistently held that it would be slow to interfere with decisions of professional regulatory panels on the question of appropriate sanctions. A vital consideration here is that the regulator is usually best placed to decide what level of sanction is necessary and proportionate in the circumstances."

5. The finding of dishonesty was, as is submitted on behalf of the Respondent, highly significant in the present context. The panel, in my view justifiably, stated that the Appellant had shown:

"A lack of meaningful insight into the seriousness of your actions, particularly in relation to your dishonesty. The panel noted that throughout your oral evidence you attempted to minimise your responsibility in relation to your dishonesty and on occasions referred to it as an error or an oversight on your part."

6. It was further significant that the panel not only had to deal with prolonged dishonest conduct, but also had to deal with aggressive behaviour in the presence of a patient. Even if that conduct by itself was not so serious as to justify striking off, it was identifiable exacerbation in relation to the overall picture.
7. For my part, I would emphasise that any dishonest non-disclosure of the type with which I am here concerned is very serious. That is so given the context.
8. Employment as a nurse necessarily brings that employee into contact with vulnerable persons who by definition rely upon the integrity of the nurse over a huge range of concerns. It is for that reason that dishonest non-disclosure will inevitably be treated as an exceptionally serious matter in terms of the consideration of public confidence in the nursing profession once it is proved.
9. Here the panel clearly undertook a most careful and detailed fact finding and sentencing hearing. In relation to the latter, the panel considered and discounted in reasoned fashion all the alternative options save striking off.
10. I wish to stress that all cases in this jurisdiction turn on their own facts both in relation to the circumstances of the offending and mitigation. This court will not be assisted by comparative points based simply upon how other cases may have been disposed of.
11. I am however, assisted by the following observations of general application from Mitting J in Nicholas-Pillai v General Medical Council [2009] EWHC 1048 (Admin):

"These cases always result in the balancing of one public interest against another. In cases of actual proven dishonesty, the balance ordinarily can be expected to fall down on the side of maintaining public confidence in the profession by a severe sanction against the practitioner concerned. Indeed, that sanction will often and perfectly properly be the sanction of erasure, even in the case of a one-off instance of dishonesty."

12. It is that right that I should say as for doctors, so for nurses. The day to day contact between nurses and patients is such that as much is dictated.
13. This was not a case of one-off dishonesty. I have already stressed the significance of non-disclosure. This was not a case in which the Appellant had admitted all and provided independent evidence as to the cause of the misconduct, for example by reference to exceptional stress, although there was some reference before the panel, not expanded upon before me, to child care difficulties. Nor in this instance is there some impressive material tending to amount to a guarantee of no problems in the future.
14. I reject the submission that the mere fact of proceedings being taken against this Appellant or any Appellant and being resolved against him in some way amounts to such a guarantee. Experience in many fields shows that that is not the case a fortiori in cases where guilt has been disputed.
15. There will be cases in which a regulatory body even wholly conscious of its duty to the public might be able to extend leniancy even in a case of dishonesty. This case like other cases is not intended to apply outside its own specific facts, save in relation to the extent to which it is possible to extract some matter of principle.
16. For my part, I would have thought that leniancy might be extended in cases of full and frank admission coupled with persuasive explanation and material tending to place the panel in a position where they really do have an assurance as to no problems in the future. Those features were not and are not present here.
17. The Appellant has provided no further material to me explaining why he acted as he did or why he denied but now accepts having behaved in a thoroughly dishonest way.
18. I acknowledge that the Appellant was subject to no previous findings of misconduct and that the sanction selected was stern. I am, however, wholly unpersuaded that it was excessive, disproportionate or wrong having regard to the primary facts as found and now undisputed and the manner in which the panel identified the appropriate sanction.
19. I recognise that the consequences of that sanction are severe for the Appellant. I understand that in such circumstances there will always be a temptation towards mercy. Indeed, I have felt it myself. But in my judgment, in this case the panel were right to resist that temptation and I must do likewise.
20. I wish to point out in terms that the Appellant did not and does not face a more severe penalty because he disputed some of these matters. The panel and I were and are, however, entitled to take into account the insight into his character which was enabled by his giving evidence as he did.

This appeal is dismissed.

21. MR GARSED: My Lord, there is an application for the Respondent's costs.
22. THE DEPUTY JUDGE: Yes, I have seen two schedules, one on each side. You wish me to undertake a summary assessment.
23. MR GARSED: Indeed, my Lord, although I should say that the Respondent's schedule of costs submitted to the court in advance of the hearing contained one error in relation to my year of call in the advocacy of hearing section --
24. THE DEPUTY JUDGE: Right.
25. MR GARSED: -- a 2006 call rather than 2004 call, although the description of my call is correct earlier in the document.
26. Also the attendance figures were based on estimates. This matter was given a one day time estimate.
27. THE DEPUTY JUDGE: Yes, overestimate.
28. MR GARSED: It was overestimated. It has only taken by my calculation an hour and a half of presence in court and that has been adjusted.
29. THE DEPUTY JUDGE: Yes. I also have, of course, the Appellant costs which are significantly more modest in terms of what they were putting. Usually an Appellant would have to do rather more work than a Respondent because they have got to set the thing on foot.
30. In general terms I will also tell you, not intending, of course, any personal criticisms -- I appreciate these matters are a product of changes in general approach -- I think the skeleton argument might have benefited from being considerably shorter.
31. There is a very substantial charge for it. There is a great difference I think between the two. Yes, drafting skeleton argument in this case comes out at over £3,000 and the total between the two fee earners of 14 hours. That is wholly disproportionate.
32. Do you know -- I can say this at least anecdotally and with a smile -- I was actually in one of the first cases in which the Master of the Rolls at the time Lord Donaldson laid down that skeleton arguments might be put in. He made it clear that skeleton was supposed to mean skeleton. Over the last, however many years that is -- too many -- it has developed into very voluminous written submissions and it has had an impact on costs.
33. Now, it is very nice to have all things to read in advance and there is a benefit in that it shortens hearings. I cannot roll back the years or the tide and get shorter skeleton arguments, but I do not wish to encourage by awarding costs on that sort of scale these types of skeleton arguments.
34. I am capable of looking at the authorities if I am given the reference, particularly nowadays with the internet and so on. You get the general drift.
35. MR GARSED: I do, my Lord.
36. THE DEPUTY JUDGE: I would have thought in round terms costs around £4,000 are legitimate in this case. Anything higher than that I would rather baulk at.
37. MR GARSED: Well, I was going to, I hope happily, tell the court that the adjusted figure given the reduction in amounts claimed for attendance came for £5,592. So it is not very --
38. THE DEPUTY JUDGE: Not too far from my figure.
39. MR GARSED: No.
40. THE DEPUTY JUDGE: I still think I have got a point.
41. MR GARSED: I do acknowledge that in particular the use of two fee earners and one of those fee earners spending quite some time on the skeleton argument perhaps is not entirely warranted in the circumstances of this case.
42. THE DEPUTY JUDGE: I do not think I can justify it. I am sticking with my £4,000.
43. MR GARSED: I will not fight for that.
44. THE DEPUTY JUDGE: Do you want to press any further?
45. MR GARSED: No. Thank you.
46. THE DEPUTY JUDGE: You asked for slightly more than that, but you were making the running at the beginning.
47. MR EGAN: My Lord, yes.
48. THE DEPUTY JUDGE: It is for me to come down --
49. MR EGAN: I think a figure of £4,000 would be perfectly reasonable in this case.
50. THE DEPUTY JUDGE: I have done it in the most robust fashion. I am not apologising for that. I am trying to encourage a high degree of robustness. I am not someone with a huge amount of experience with the Nursing and Midwifery Council, but not completely in ignorance of it. But I think that that is about the level for this sort of thing.
51. MR EGAN: I am just grateful I can succeed upon one argument of disproportionality.
52. THE DEPUTY JUDGE: I am sorry. You do not get any resistance to that.
53. In that event, I will order, unless you have any representations --
54. MR EGAN: My Lord, we fully accept the authorities make it clear that costs must follow the event in this matter.
55. I have discussed this with my learned friend. My client will be seeking with the NMC to seek to pay by installments.
56. THE DEPUTY JUDGE: Yes.
57. MR EGAN: That is not a matter --
58. THE DEPUTY JUDGE: But you do not seek any order from me. That is entirely reasonable.
59. Obviously I had to make firm findings against your client, but given the importance of the issue from your point of view --
60. MR EGAN: Yes, indeed.
61. THE DEPUTY JUDGE: -- and the fact that it is an in house so to speak regulatory tribunal, I would wish there to be some punitive approach to the recovery of the costs order that would deter people from trying to challenge matters. I have sternly resisted the temptation for mercy, but I can see why your client has tried it.
62. I will order £4,000 to be paid by way of costs. Do I need to specify a period in when it might be paid?
63. MR GARSED: If no period is specified it would indicate 14 days. So if it could be perhaps reflected in the order that the Appellant will make a proposal to pay which will, I assure the court, be considered.
64. THE DEPUTY JUDGE: I am grateful for that assurance.
65. I will specify payment within 56 days and accept the no doubt in entirely good faith and on instructions indication on behalf of the Council that they will accept payment in installments.
66. MR GARSED: Thank you, my Lord.
67. THE DEPUTY JUDGE: Is there anything else?
68. MR EGAN: No, your Lordship.
69. THE DEPUTY JUDGE: Thank you very much both of you for your assistance.
70. MR EGAN: Thank you.
71. THE DEPUTY JUDGE: I am afraid robustness does rather carry with it the fact that one, or sometimes both, side has one of those days that you might remember. But it is my job.
72. Thank you very much.
73. MR GARSED: Thank you, my Lord.
74. THE DEPUTY JUDGE: I will rise.