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
		27/10/2016

Mr Justice Hayden :

1. This is an appeal brought by Hanna Wisniewska against the decision of the Nursing and Midwifery Council ("the NMC") to impose a striking off order, consequent upon its finding that her fitness to practice was impaired.
2. Appeal is made pursuant to Article 38 of the Nursing and Midwifery Order 2001 ("the 2001 Order"). By rule 52.11 of the Civil Procedure Rules, (rule 52.21(3), for notices lodged after 03.10.16: The Civil Procedure (Amendment No.3) Rules 2016), the appeal may be allowed where the decision of the committee was wrong or unjust because of a series of procedural or other irregularities. Where an appeal succeeds this court may quash the decision and thereafter substitute for it any decision the Conduct and Competence Committee (CCC) could have imposed. Alternatively, the case may be remitted back to the CCC for reconsideration: see Article 38 (3) of the 2001 Order.

The background

3. The Appellant is a nurse. On 29 October 2012 she was notified by letter that she had been referred to the NMC. The referrer was her previous employer, Hertfordshire and Essex NHS Trust. The primary allegation was that on nine occasions she had not attended work, having reported sick. Instead, it was alleged, she had undertaken shifts at St Elizabeth Centre where she had worked as a bank nurse. There were two further allegations relating to an alleged failure to apply a dressing when requested to do so and a failure to conduct an electrocardiogram, again having been requested to do so.
4. The allegations were heard before the committee of the NMC, between the 22^nd and 25^th July 2014. At that hearing the Appellant accepted having worked elsewhere whilst not attending her scheduled shifts. As she had subsequently failed to mention this in her "return to work" interview, the Appellant accepted that her actions were dishonest. The remaining two allegations were contested but they both were found to be proved. It was considered that the failure to carry out the electrocardiogram, when requested, did not amount to professional misconduct.
5. The sanction imposed by the Committee was to suspend the Appellant from the nursing register for six months. In April 2015 the Appellant successfully returned to practice having served her period of suspension. She had returned to the register on 28^th February 2015. It is common ground that she has predominantly worked as a nurse since that time, though since 4 April 2016 she has been employed in a non-nursing role as a Care Assistant Manager.
6. The facts which give rise to this present appeal arose out of a failure to notify a subsequent employer of the earlier referral. On 8^th November 2013 the appellant applied for a job at the Princess Alexandra Hospital NHS Trust. In her application form Ms Wisniewska stated that she was not currently the subject of fitness to practice proceedings. Similarly, she declined to mention this in an interview for the position which took place on 5^th December 2013.
7. On 24^th March 2014 the Appellant commenced employment at the Prince Alexandra Hospital, again she did not mention her referral to the NMC. Though the Appellant made reference to having worked for the NHS in the past, when completing an HR questionnaire she omitted to mention her previous employment at the Hertfordshire and Essex NHS Trust.
8. Having initially been suspended, the Appellant resigned from the Princess Alexandra Hospital Trust on the 27^th July 2014. Thereafter the Trust initiated disciplinary proceedings and an investigatory meeting was held on the 5^th August 2014. In the written notice of decision the NMC record that, at this meeting, Ms Wisniewska stated that at the time of completing her application she had checked her PIN number on the NMC's online register and as no referral had been listed had thought that the matter was no longer 'live'.
9. At the April 2016 hearing the Appellant faced six charges which require to be set out:

i) On or around 8^th November 2013 provided misleading information on your application form to the Princess Alexandra Hospital NHS Trust ('the Trust') in that you indicated that you were not the subject of a Fitness to Practise investigation and/or proceedings;

ii) On or around 5^th December 2013 did not inform the Trust that you were under investigation by the NMC during your interview;

iii) Between 5^th December 2013 and 17^th July 2014 did not inform the Trust that you were under investigation by the NMC and/or subject to Fitness to Practise proceedings;

iv) Your action at charges 1 and/or 2 and/or 3 above were dishonest in that you deliberately did not disclose to the Trust that you were under investigation by the NMC and/or subject to Fitness to Practise proceedings when you knew you were under a duty to do so;

v) During your application for employment to the Princess Alexandra Hospital, failed to declare your previous employment history with Hertfordshire and Essex Hospital and/or your reasons for leaving that employment:

a) On your application form on or around 8^th November 2013;

b) During your recruitment interview on or around 5^th December 2013;

c) On a new Employee Questionnaire dated 29^th January 2014.

vi) Your conduct at charge (v) above was dishonest in that you intentionally attempted to conceal the facts referred to at charge (v) from the Princess Alexandra Hospital Trust when you knew you had a duty to disclose those facts

AND, in the light on one or more of the charges as set out above, you Fitness to Practise is impaired by reason of your misconduct.

10. The Panel's 'Decsion on Misconduct and Impairment' records the following:

i) 'You accepted that there was no excuse for having not declared your referral to the NMC to your employer nor your previous employment history. You said that failing to do so meant that employers were not aware of all the issues they need to be aware of at the time of deciding whether to employ a nurse'.

ii) 'You said that you recognised the importance of honesty to the nursing profession. You accepted that you have harmed the reputation of the nursing profession and said that you are "devastated" by this'.

iii) 'You told the Panel that you would advise colleagues to inform prospective employers if they had been referred to the NMC. You said that you have learnt a lot from your two referrals to the NMC'.

iv) 'The Panel noted that the facts of this case do not raise concerns about a deficiency in your clinical skills, nor is any criticism made of the quality of care you provided to any patient. The Panel have regard to the testimonials you provided, most of which speak positively to your clinical and interpersonal skills'

11. I extract the above as the key factors identified by the Panel as potentially mitigating the misconduct they were considering. However, the written reasons conclude:

i) 'Your actions in failing to declare the true position had the potential to put patients at unwarranted risk of harm in that you obtained a job which you may not otherwise obtained had you been honest'.

ii) 'Your misconduct involved breaching fundamental tenets of the profession, namely your duty to act with honesty and integrity at all times and, in so doing, will have brought the profession into disrepute' (sic)'

iii) 'The Panel bore in mind that your dishonesty was prolonged… it had regard to your oral evidence and written reflection… and accepted that you have apologised for your misconduct'.

iv) 'It was of the view that you lacked insight into the seriousness of your dishonesty and its impact on patients and public confidence in the profession… the Panel concluded that you provided it with nothing that suggests that you understand how the public might view a nurse of your seniority repeated acting as you have done'.

v) 'The panel found that there remains a significant risk that you may repeat your misconduct, there by once again reaching fundamental tenets of the profession and bringing the profession into disrepute. In the panel's judgement, the repeated nature of your past misconduct, coupled with the absence of any evidence of remediation, limited insight and remorse increase the likelihood that you would repeat your misconduct'.

12. In addition to those conclusions the Panel also identified an issue of 'public interest' concluding 'public confidence in the nursing profession would be undermined were a finding of impairment not to be made'.
13. At the hearing Ms Wisniewska conceded that her actions amounted to professional misconduct and a finding 'of current impairment was conceded, on the grounds of public interest (only)'. It was contended by Mr Hookway, who appeared before the committee and in this Court, that the circumstances of the case enabled the Panel to sanction the Appellant by way of suspension rather than requiring her to be struck off. As Mr Hookway puts it the sole issue was whether the Appellant should be struck off or suspended. The Panel concluded that Ms Wisniewska should be struck off and it is an appeal against that sanction which comes before me today.
14. Mr Hookway advances three grounds of appeal:

"Ground One: The Panel's decision to impose a striking off order being wrong in that they failed to properly evaluate the mitigating features of the case when considering a suspension order. Given the only real decision in the case was whether to suspend or strike off, the Panel should have considered all mitigation when determining the suitability of a suspension order.

Ground Two: The Panel being wrong to conclude the Appellant posed a risk of harm to patients when determining the issue of current impairment. It is further contended that this erroneous conclusion being relied on when the Panel determined sanction invalidates that decision.

Ground Three: The Panel's decision on impairment being wrong insofar as they made irrational findings in relation to insight/remediation. It is further contended that these erroneous conclusions being relied on when the Panel determined sanction invalidates that decision."

15. Included within the ambit of his argument within Ground One Mr Hookway highlights the case law which emphasises the importance of coherent reasoning and particularly the need to demonstrate the weight given to mitigating factors in demonstrating a proportionate sanction. In Brennan v. Health Professions Council [2011] EWHC 41 (Admin) (at para 45) Ouseley J noted:

"I accept Mr Harris' submission that the Committee has not dealt adequately with the case for Mr Brennan as to why he should not be struck off. Its reasoning is not legally adequate; it does not enable the informed reader to know what view it took of the important planks in Mr Brennan's case. I do not know whether it accepted his remorse and apologies, accepted that he now truly saw the error of his ways, that is to say had insight into what he had done wrong, and accepted that he was trying to make good the harm he had done to the standing or image of the profession, or whether they thought that he was insincere, or that this would all be ineffective, without striking off, to restore the harm done or to prevent repetition, despite its sincerity. And if the latter, I do not know why it took that view. I accept that it thought that there was a risk of repetition, but whether that was merely the degree of risk that would be present in any case of past misconduct, or whether there was something more to it, I do not know. I do not know why it was thought proportionate to impose the heaviest, and in reality the most punitive sanction, when punishment was not the objective of sanction, and the primary objective of sanctions, the protection of the public, was not at issue." (my emphasis).

16. The principles were both emphasised and amplified by Kerr J in O v. Nursing and Midwifery Council [2015] EWHC 2949 (Admin):

"75. I turn to consider my reasoning and conclusions in relation to the second and third grounds of the appeal. In my judgment, it is clear that the committee fell into error in the way it approached its decision on sanction. In its written decision, the committee recorded the submissions in mitigation, but did not properly evaluate them.

76. The mitigating factors were stated to "include" the four matters set out as bullet points in its decision. The list appeared not to be exhaustive but was not further developed. When going on to consider the appropriate sanction, the committee then applied the recognised technique, provided for in the Guidance, of considering available sanctions in ascending order of gravity.

77. There is nothing wrong in principle with that technique, provided it is undertaken in the right way. But where there are only two possible candidates for the appropriate sanction, namely suspension or striking-off, it is critical that all the available mitigation is considered at the stage of considering suspension, as well as when considering striking-off."

17. Mr Hookway extracts the following points in mitigation, which are not controversial, each having been advanced to the Panel. Mr Vallance, counsel for NMC, agrees. Thus:

i) Full admissions to the charges as well as misconduct/impairment,

ii) A degree of insight,

iii) Remorse,

iv) Efforts to prevent repetition and the apparent success of these efforts given there has been no repetition despite the Appellant working as a nurse for a period since her initial suspension order,

v) Her corrective steps insofar as she was the one to eventually disclose these matters to her Employer on the 17^th July 2014,

vi) Historic observance of good practice before and since this incident,

vii) Evidence of her keeping up to date through recent training,

viii) The effect of stress contributing to her misconduct at the relevant time,

ix) Problems with her mother's ill-health contributing to the initial finding of dishonesty.

18. In addition I am reminded that the Panel were addressed to the Indicative Sanctions Guidance (ISG) prepared by the NMC. At para 65:

"Suspension order

65. 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

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

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

66. 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.

67. This sanction may be appropriate where 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. This is more likely to be the case when some or all of the following factors are apparent (this list is not exhaustive):

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

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

67.3 No evidence of repetition of behaviour since the incident.

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

67.5 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.

67.6 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."

19. It is equally important to look at the Guidance in relation to the more draconian order:

Striking-off order

70. 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

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

70.2 Is the seriousness of the case incompatible with ongoing registration (see paragraph 66 above for the factors to take into account when considering seriousness)?

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

71. 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):

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

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

71.1.2 Midwives rules and standards

71.1.3 Standards for medicines management

71.1.4 Record keeping: Guidance for nurses and midwives

71.1.5 Guidance for the care of older people

71.1.6 Raising and escalating concerns: Guidance for nurses and midwives

71.2 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

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

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

71.5 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

71.6 Dishonesty, especially where persistent or covered up

71.7 Persistent lack of insight into seriousness of actions or consequences

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

72 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 public22. Striking-off orders have been upheld on the basis that they have been justified for reasons of maintaining trust and confidence in the professions.

20. This Guidance, as well as the case law that I have considered above, emphasises that where there are only two options for sanction, as here, i.e. striking off or suspension, it is critical that the available mitigation is not only applied when considering 'striking off' but also when evaluating the proportionality of a suspension. The danger is that the committee rejects suspension and comes only fully to evaluate the mitigation when considering striking off. This, says Mr Hookway is what has occurred here 'because it will never be proportionate to alleviate the sanction where you have concluded it is necessary.' Further, 'it must play a part in the decision itself, not be an ancillary footnote'. Thus he concludes the decision is logically and irretrievably flawed.
21. Having carefully reviewed the Panel's reasoning I am satisfied that it is impossible to evaluate what weight it gave to those factors advanced in the Appellant's favour. In addition it is difficult to assess the weight given to the ISG document. I agree with Mr Hookway that the assertions and conclusions are no substitute for the requisite reasoning.

Ground Two: The Panel being wrong to conclude the Appellant posed a risk of harm to patients when determining the issue of current impairment

22. Though 'impairment' was conceded on the grounds of the public interest, any finding that the Appellant posed a risk to Patients was opposed. The basis of this opposition was:

i) 'The dishonesty admitted in this case did not occur in the course of clinical duties.'

ii) 'The Appellant having practiced for over 20 years without incident. Aside from the earlier referral there has never been any question mark over her clinical ability.'

23. Guidance on the approach to 'impairment' is set out in the judgment of Cox J: Council for Healthcare Regulatory Excellence v. (1) Nursing and Midwifery Council, (2) Paula Grant [2011] EWHC 927 (Admin), largely deriving from the analysis of Dame Janet Smith in the Fifth Report from Shipman. Though it is well known to practitioners in this field it is nonetheless important to repeat its key observations here (at paragraph 76):

"Do our findings of fact in respect of the doctor's misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:

a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or

c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or

d. has in the past acted dishonestly and/or is liable to act dishonestly in the future."

24. The point here is, to my mind a short one, i.e. does the written reasoning identify evidence that the registrant has or will put patients at risk of unwarranted harm? The answer is a resounding 'no'. Moreover, not only is there no reasoning to support such a conclusion, I can identify no evidence that the Panel could have taken into account in reaching such a conclusion. There is no evidence that the Appellant has ever put any patient at risk. Whilst, in a twenty year career, she has recently wavered in her capacity for honesty there is nothing beyond the two additional charges in her first referral (see paras 3 and 4 above) to suggest that her clinical care has ever fallen below the standards expected. Indeed there is uncontested evidence which indicates Ms Wisniewska has discharged her professional responsibilities with conspicuous skill. Accordingly, as the Panel have plainly incorporated this conclusion, which cannot be supported, into their justification for a striking off order, it follows that order cannot be sustained.
25. In both his written and oral submissions Mr Vallance recognises the lacuna in the Panel's reasoning concerning the risk of harm to patients. He encapsulates it thus:

"It does not follow that just because the original NMC proceedings which the Appellant failed to disclose did not involve concerns relating to her clinical practise that, were the Appellant to fail to disclose NMC proceedings in the future, she would not be exposing patients to a risk of harm. To reach such a conclusion would be to assume that any future NMC proceedings would not involve concerns regarding the Appellant's clinical practice. The risk identified by the Panel in this case was that the Appellant would fail to disclose any NMC proceedings against her in the future. If that were to happen in circumstances where those proceedings relating to her clinical practise, then the Appellant would be exposing patients to a risk of harm by depriving her employer of the opportunity to conduct a risk assessment and to monitor or restrict her practise. "

26. With respect to Mr Vallance the logic of that analysis is tenuous at best. More significantly however, it is an entirely ex post facto rationalisation. The reasoning cannot be found in the Panel's own report, nor can such inferences reasonably be drawn from what is said on this point. Mr Vallance, perhaps anticipating his difficulty here, adroitly advances an alternative submission:

"In the event that the Court disagrees with the above submissions and concludes that the Panel ought not to have found a future risk of patient harm, it is submitted the Panel's error in that regard did not have a material impact on the decision to impose a striking-off order. The Panel's decision on sanction was based primarily on the repeated and serious nature of the misconduct and the impact that such misconduct had on the reputation of the profession. It is submitted that the Panel's decision on sanction would have remained the same had the Panel taken a different approach to the risk of patient harm. "

27. This is a bold submission. The fact that the Panel included 'potential risk of harm to patients' within its reasoning can only mean, firstly, that they considered this had been established as a fact and secondly, they were entitled to give weight to it. It is difficult to see how such an important conclusion could not have weighed heavily in their minds. I am not attracted to Mr Vallance's submission that in the context of the Panel's reasoning as a whole this was a collateral point.
28. It is argued that the real focus of the Panel's investigation was the nature and extent of the dishonesty and that their evaluation of the Appellant's behaviour was such as to drive them towards erasure from the register. The ISG, when addressing the question of dishonesty, highlights the judgment of Mitting J in Parkinson v NMC [2010] EWHC 1898 (Admin):

18. …"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."…

Mr Vallance contends that there will be cases where the level and extent of dishonesty can only realistically have one outcome i.e. striking off. However, he accepts and I agree, this is not one of those cases. There may be a severe risk of erasure but this may be mitigated by the kind of factors that Mitting J highlights in his non exhaustive list above. Thus, the wider ambit of the Panel's reasoning becomes highly relevant to outcome and must of course be sustainable on the available evidence and/or properly taken into account.

29. If I may say so and with great diffidence, I do not consider the guidance in the ISG, on this point, to be entirely clear. Paragraph 37 reads as follows:

"37. We do not consider that this decision means that in cases of dishonesty panels are left with an arbitrary choice between suspension and striking-off, or that in the absence of special circumstances a striking-off order is to be seen as a 'default' outcome. Rather, this decision makes clear that dishonesty is a highly serious matter and that a striking-off order will almost always be a possible outcome."

30. The phrase 'almost, always… possible' is not one of pellucid clarity. Suffice it to say that honesty is so integral to the standing of a profession that any departure from it will always risk a 'striking off' order as a possible outcome.

Ground Three: The Panel's decision on impairment being wrong insofar as they made irrational findings in relation to insight/remediation.

31. It is said on behalf of the Panel that it should be taken to have had close regard to the Appellant's oral and written evidence when considering insight and remediation. Mr Vallance highlights the following:

"It has regard to your oral evidence and the written reflection you have provided. Whilst the panel accepted that you have apologised for your misconduct, it was of the view that you lacked insight into the seriousness of your dishonesty, and its impact on patients and public confidence in the profession. The panel accepted that you found giving your oral evidence difficult and stressful, and also that you were not speaking in your first language. However, the panel concluded that you have provided it with nothing that suggests you understand how the public might view a nurse of your seniority repeatedly acting as you have done."

32. I must say that I do not find it easy to reconcile the conclusion that the Panel had been provided with "nothing that suggests you understand how the public might view a nurse of your seniority repeatedly acting as you have done" with the extracts from their reasoning that I have set out at para 10 (i) – (iv) above. Similarly, I agree with Mr Hookway that the Panel's conclusion that there was an absence of 'any' evidence of remediation is plainly wrong. Mr Vallance scoured the transcripts to find extracts which tended to support this conclusion. He also noted the following paragraph in the Panel's decision on sanction:

"You appear to place your wellbeing above that of patients or the reputation of the profession. You sought to justify your actions in respect of the previous referral by the impact of your employer's behaviour on you. Further, your insight has been mainly limited to the impact of your misconduct on yourself."

33. During the course of submissions Mr Vallance, very properly, volunteered that the first sentence in this extract is unsustainable. In short, there is not a jot of evidence that the Appellant has ever placed her wellbeing above that of a patient. Indeed, there is compelling evidence to the contrary. Ultimately, I am satisfied that the illogicalities in the Panel's reasoning on this point undermines the reliability of it's finding and as such renders unreliable the decision on sanction.
34. In this Court I am permitted to exercise the powers of the Conduct and Competence Committee or alternatively remit the case to them for reconsideration by a freshly constituted panel. In many circumstances the Panel will be better placed to evaluate sanctions. (see: O v. Nursing and Midwifery Council (supra); Brennan v. Health Professions Council (supra)). Here, however, Mr Vallance recognises that if the appeal is to be allowed the only alternative sanction available is a period of suspension which this Court is fully able to assess: see :Giele v General Medical Council [2005] EWHC 2143 (Admin); Isaghehi v Nursing and Midwifery Council [2014] EWHC 127 (Admin) I agree with that approach. I consider the appropriate sanction to be one of 12 months suspension from the register. As has been said on other occasions the principle function of sanctions is not punitive but to protect the public interest (see: Bolton v Law Society [1994] EWCA Civ 32). Whilst offences of dishonesty will always attract significant sanction it must be remembered that the public interest may include the safe return of a nurse to practise. Whilst not in any way seeking to trivialise the dishonesty here, which though interconnected was nonetheless repeated, I consider that on applying the principles of proportionality (see Huang v Secretary of State for the Home Department [2007] UKHL 11) the maximum period of suspension is the appropriate sanction.