This judgment was handed down remotely at 2pm on Tuesday 17th June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
.............................
MR JUSTICE MOULD
MR JUSTICE MOULD :
Introduction
- The appellant, Ms Saffron Mitchell, appeals pursuant to articles 29(9) and 38 of the Nursing and Midwifery Order 2001 ["the Order"] against the decision of the Defendant to make a striking-off order, having found that her fitness to practice as a registered nurse was impaired by reason of misconduct. That decision was taken by the Respondent's Fitness to Practise Committee ["the Committee"] on 17 May 2024 and communicated to the Appellant by letter on the same date. That letter included the Committee's written decision ["the decision"]. The Appellant is currently subject to an interim suspension order also made by the Respondent on 17 May 2024.
Factual background
- The background to the regulatory proceedings brought by the Respondent against the Appellant is set out in the decision.
- The Appellant qualified as a registered nurse in 2012. Between 15 May 2012 and 28 January 2022 she was employed at Robert Harvey House, a nursing home in Birmingham operated by BCOP. During her employment at Robert Harvey House, the Appellant was promoted from the role of general nurse to enhanced assessment bed manager and then to medication clinical lead.
- On 17 November 2020 the Appellant was arrested by South Wales Police on suspicion of conspiracy to supply drugs. It was alleged against her that she, her then partner and his father had conspired to smuggle drugs into HMP Parc Prison, Bridgend. Shortly after 17 November 2020, on her return to work the Appellant informed her then employer, BCOP, of her arrest. On 30 November 2020, South Wales Police notified the Respondent of the arrest of the Appellant on suspicion of being involved in a conspiracy to supply drugs.
- In early 2022 the Appellant applied for the job of functional assessor at the Centre for Health and Disability Assessment. The Centre is operated by Maximus UK. The Centre carries out work suitability assessments for universal credit and work suitability allowance for the Department for Work and Pensions. On 6 January 2022 the Appellant completed a job application form. The application form included the following two questions under the heading "Criminal Record Declaration (For Access to Government Owned Assets)" –
"The Company issuing this form has Government contracts, some or all of which require it to hold material or information which is the property of the Government. The company has a duty to protect these assets while in its possession and this obligation extends to its employees and agents. Since you are or may become such a person, please complete the following sections:
…
Have you been convicted or found guilty by a Court of any offence in any country (excluding parking but including all motoring offences even where a spot fine has been administered by the police) or have you ever been put on probation (probation orders are now called community rehabilitation orders) or absolutely/conditionally discharged or bound over after being charged with any offence or is there any action pending against you? You need not declare convictions which are "spent" under the Rehabilitation of Offenders Act (1974).
Yes/No (Delete as applicable). If Yes, please provide details below.
…
Do you know of any other matters in your background which might cause your reliability or suitability to have access to government assets to be called into question?
Yes/No (Delete as applicable) If Yes, please provide details below".
- The Appellant did not answer the first question at all. She answered "No" to the second question. She did not provide details of her arrest by South Wales Police on suspicion of conspiracy to supply controlled drugs and the ongoing criminal investigation following her arrest on 17 November 2020.
- The job application form concluded with a declaration in the following terms, which was signed by the Appellant –
"I declare that the information I have provided is true and complete to the best of my knowledge and belief. In addition, I understand that any false information or deliberate omission in the information I have provided may disqualify me from employment in connection with Government contracts and that if I have already been appointed to a position, I may be dismissed.
I understand that the information which I have provided in this application and any supporting documentation may be checked against official records, and I authorise MAXIMUS UK and their recruitment partners to approach the named employers and referees as part of the process.
I undertake to promptly notify my future employer of any material changes in my personal circumstances".
- The Appellant was successful in her job application. On 1 February 2022 she began her employment with Maximus UK.
- On 19 April 2022 the Appellant was charged by South Wales Police with two criminal offences, the first being of conspiracy to supply drugs and the second of bringing mobile phones into Bridgend Prison. She was remanded on bail to appear before Cardiff Crown Court. She did not inform her employer, Maximus UK, of those matters.
- Meanwhile, following the referral by the Police the Respondent had begun a regulatory investigation. On 22 May 2023 and 30 May 2023, the Appellant received correspondence from the Respondent concerning that ongoing regulatory investigation and notifying her of an interim suspension order for a period of 18 months. On 30 May 2023, the Appellant informed her line manager at Maximus UK of the Respondent's regulatory proceedings against her and that she was facing criminal charges.
- On 8 June 2023, the Appellant attended a meeting with her employer to investigate her failure to disclose the criminal and regulatory proceedings against her. On 27 July 2023, her employer held a formal disciplinary conduct meeting which the Appellant attended.
- On 14 August 2023 at Cardiff Crown Court, upon the Crown offering no evidence, the court entered Not Guilty verdicts on both of the charges brought against the Appellant.
- On 22 September 2023, Maximus UK dismissed the Appellant from her employment at the Centre for gross misconduct.
- In September 2023 the Appellant applied for agency work with Acton Banks Healthcare. On 14 September 2023 she completed a risk assessment form, in which she gave details of her arrest for conspiracy to supply drugs and contraband in November 2020 and of her subsequent acquittal. She also notified the ongoing regulatory proceedings against her. In a letter dated 13 December 2023, Acton Banks Healthcare's compliance team state that on 1 November 2023 the Appellant was employed by them on a zero hour contract. In evidence before the Committee, the Appellant said that she joined Acton Banks Healthcare to do agency work.
- On 5 February 2024 the Appellant began a further employment with BCOP as care manager at Anita Stone Nursing Home in Birmingham. In a letter dated 29 April 2024, BCOP's human resources manager states that during her interview for that job, the Appellant was asked whether she had anything to share under due diligence. The Appellant then declared that the Respondent was inquiring into her arrest and charges whilst in her previous employment, that she had been suspended by her previous employer pending internal investigation and that the Respondent continued their investigation pending hearing scheduled to take place later in 2024.
- In their letter, BCOP also state that during the Appellant's employment at Robert Harvey House she was of sound character and found to be dependable, reliable, hard-working, conscientious and courteous. There had been no concerns or disciplinary issues. They had chosen to employ her again in early 2024 as she had never given them any reason to doubt her sincerity and honesty.
- In a letter dated 3 May 2024, BCOP's general manager at Robert Harvey House confirms that in November 2020 the Appellant had come to her and informed her of the Appellant's arrest and release pending criminal investigation; and that the Appellant had been very remorseful of her actions. The general manager says that she never felt that the residents or the service at Robert Harvey House were at risk from the Appellant working there. The Appellant had been a reliable, honest and hard working employee whom she would be happy to re-employ at Robert Harvey House.
- Both letters from BCOP and the letter from Acton Banks Healthcare were in evidence before the Committee.
- In a document dated 13 December 2023 and headed "Reflection" the Appellant said as follows –
"In November 2020 I was arrested by the police and released pending investigation. At this time I was working in a nursing home and informed my employer as I had worked there for numerous years and was due on shift the day of the arrest but did not show up. I stayed with the company after the arrest for another two years and was promoted during that time.
When I left the nursing home to start a new role I did not disclose the investigation during interview and when completing documents.
Whilst 2-3 months into my role I was then charged by the police and did not inform my employer.
I was eventually found not guilty and did not have to attend court.
On reflection of my actions looking back I was not open and honest with my employer out of fear and anxiety. I also was not aware that I had to disclose even just the arrest to the NMC so I was able to identify gaps in my knowledge with the NMC standards. However, I should have and take full accountability for my actions and am aware of the reputation I am responsible for upholding. I am deeply sorry for my actions and the effect it has had on my employer which has resulted in me being dismissed.
This is the first time I was arrested. First time being under investigation at work and first time being referred to the NMC. I am disappointed in myself that I did not take the correct actions during this process and have suffered immensely for it, mentally and financially.
I can ensure that this will never occur again. I have made sure that I have familiarised myself more with the NMC standards as I identified gaps in my knowledge with this. I have now joined an agency and made sure that I declared the arrest and NMC investigation to them despite my anxiety and fear. I was able to still join the agency and had to complete a risk assessment.
I would love to be able to continue with my nursing career as this is my passion and despite this situation I consider myself as a good nurse who always puts her residents/patients first. I am more than willing to do whatever it takes to be able to keep my pin and continue with my role and in making a difference to those that I provide care for.
I am extremely remorseful and have reflected and will put things right moving forward and not make the same mistake again.
I have never worked in a way to put my patients at risk and never will. I am truly sorry for my actions and hope that I can prove this and do what's right moving forward".
Proceedings before the Committee
The charges
- The Respondent advanced the following charges of impairment of fitness to practise against the Appellant –
"That you a registered nurse, whilst applying for the role of/employed as a Functional Assessor at the Centre for Health and Disability Assessments ('the Employer'):
(1) In or around 2021/2022, during a telephone screening/interview, did not disclose that you were:
(a) Arrested in November 2020 for the conspiracy to supply controlled drugs;
(b) Subject to an ongoing criminal investigation for the conspiracy to supply controlled drugs.
(2) Around 5 January 2022, did not disclose in your application form, that you were:
(a) Arrested in November 2020 for the conspiracy to supply controlled drugs;
(b) Subject to an ongoing criminal investigation for the conspiracy to supply controlled drugs.
(3) Between 1 February 2022 and 1 April 2022 whilst employed as Functional Assessor, did not disclose to your Line Manager/Employer that you were:
(a) Arrested in November 2020 for the conspiracy to supply controlled drugs;
(b) Subject to a criminal investigation for the conspiracy to supply controlled drugs.
(4) Between 1 April 2022 and 29 May 2023, did not disclose to your Line Manager/Employer that you had been charged to appear at Court with one or more offences linked to conspiring to bring controlled drugs into HMP Parc.
(5) Your actions in one or more of charges 1(a), 1(b), 2(a), 2(b), 3(a), 3(b) & 4 above were dishonest, in that you sought to conceal your arrest/investigation/charges from your Employer.
AND in light of the above, your fitness to practise is impaired by reason of your misconduct".
- The Committee held a hearing which began on 7 May 2024. At the beginning of the hearing, counsel for the Appellant informed the Committee that the Appellant admitted all charges in full save for charge 5. In respect of charge 5, the Appellant admitted dishonesty in relation to her actions under charges 3(a), 3(b) and 4. She did not admit dishonesty in relation to her actions under charges 1(a), 1(b), 2(a) and 2(b). Counsel made clear to the Committee that in not admitting dishonesty in relation to those actions, it was not the Appellant's case that she had in fact disclosed the matters stated in charges 1(a), 1(b), 2(a) and 2(b). Counsel confirmed that there had been no disclosure of those matters.
- Having heard evidence from the Head of Nursing Professional Standards for Health and Disability Assessments employed by Maximus UK and from the Appellant, the Committee dismissed the charge of dishonesty against the Appellant in relation to charges 1(a) and 1(b) but found charge 5 to have been proven in relation to charges 2(a) and 2(b).
Misconduct – the Committee's findings
- For the purposes of determining whether the actions of the Appellant as admitted or found proven under the charges amounted to misconduct, the Committee had regard to The Code: Professional standards of practice and behaviour for nurses and midwives 2018 ["the Code"]. The Committee considered that the Appellant's actions amounted to breaches of the following provisions of the Code –
"20 Uphold the reputation of your profession at all times
You uphold the reputation of your profession at all times. You should display a personal commitment to the standards of practice and behaviour set out in the Code. You should be a model of integrity and leadership for others to aspire to. This should lead to trust and confidence in the professions from patients, people receiving care, other health and care professionals and the public.
To achieve this, you must:
20.1 keep to and uphold the standards and values set out in the Code
20.2 act with honesty and integrity at all times, treating people fairly and without discrimination, bullying or harassment
20.3 be aware at all times of how your behaviour can affect and influence the behaviour of other people.
…
23 Cooperate with all investigations and audits
This includes investigations or audits either against you or relating to others, whether individuals or organisations. It also includes cooperating with requests to act as a witness in any hearing that forms part of an investigation, even after you have left the register.
To achieve this, you must:
…
23.2 tell both us and any employers as soon as you can about any caution or charge against you, or if you have received a conditional discharge in relation to, or have been found guilty of, a criminal offence (other than a protected caution or conviction)
23.3 tell any employers you work for if you have had your practice restricted or had any other conditions imposed on you by us or any other relevant body".
- The Committee acknowledged that breach of the Code does not necessarily amount to misconduct in every case. The Committee therefore considered each of the charges either admitted by or proven against the Appellant in turn in order to decide whether the Appellant's acts or omissions were sufficiently serious as to amount to misconduct.
"In respect of charges 1a) and 1b), the panel did not find your failure to disclose your arrest and criminal investigation during your telephone screening interview to be dishonest within charge 5 and as such did not find your conduct amounted to a misconduct.
In respect of charges 2a) and 2b), the panel determined that you had deliberately acted dishonestly by concealing details of your arrest and ongoing criminal investigation from your then prospective employer in your application form. Your behaviour in concealing these concerns prevented your employer from conducting a proper risk assessment regarding your potential employment in order to determine whether you were a suitable candidate for the job.
Your dishonesty was a considered act motivated by personal gain as you were seeking new employment, and as noted in the record of the formal disciplinary meeting dated 27 July 2023, later approved by you, where it is noted '…she was advised by her solicitor that she will be acquitted and didn't want to tarnish her reputation by communicating information that might not be true'. The panel was of the view that your actions and omissions in charge 2a) and 2b) amounted to misconduct.
In respect of charges 3a) and 3b), you admitted dishonesty in not disclosing to your line Manager/Employer that you had been arrested and were the subject of a criminal investigation. In the panel's judgment, it was very concerning that you were dishonest over a sustained period of time. The panel determined that, during that time, you would have had plenty of opportunities to make a disclosure to your employer. Further, the panel noted that you chose to continue to conceal these details even after going through the induction process and compliance training. The panel determined that your actions and omissions were very serious and self-evidently amounted to misconduct.
In respect of charge 4, the panel found that the seriousness of the situation had escalated at the point that you were charged with offences linked to conspiring to bring controlled drugs into HMP Parc. The panel was of the view that by this time, having undertaken compliance training twice you should have known your duty to disclose the charges against you, you chose to continue to conceal them. The panel considered that your actions/omissions demonstrated a disregard for the NMC Code specifically 23.2 'tell both us and any employers as soon as you can about any caution or charge against you…'
The panel noted that it took you one year and five months to disclose your circumstances to your employer. This disclosure was only made when you were notified of the NMC commencing an investigation. In the panel's judgement, by being dishonest in charge 4, you have breached one of the fundamental tenets of nursing profession to demonstrate your professional duty of candour. You had allowed your personal interest to outweigh your duty to be honest, open and truthful with your employer and the NMC. The panel decided that your actions in charge 4 did amount to serious misconduct.
In respect of charge 5, the panel considered honesty, integrity and trustworthiness to be the bedrock of the nursing profession and, in being dishonest in charges 2-4, it found you to have breached fundamental tenets of the nursing profession. While this dishonesty related to events outside of your clinical practice, the panel was concerned that your dishonesty had real implications concerning your working in a clinical environment and finds there is a real risk that you are likely to place patients at risk of harm, and if challenged you may not be open and honest. The panel determined that the dishonesty proved in charge 5 fell short of the standards expected of a registered nurse and is sufficiently serious to amount to misconduct".
- Overall, the Committee was of the view that other registered nurses would consider the Appellant's admitted or proven dishonesty to be deplorable. The Committee concluded that the Appellant's conduct fell seriously short of the conduct and standards expected of a registered nurse and amounted to misconduct which seriously undermines public confidence in the profession.
Impairment of fitness to practise – the Committee's findings
- The Committee then addressed the question whether as a result of the Appellant's misconduct her fitness to practice as a nurse was currently impaired. The Committee said that registered nurses occupy a position of privilege and trust in society and are expected at all times to be professional and to maintain professional boundaries. Patients and their families must be able to trust nurses with their lives and the lives of their loved ones. To justify that trust, nurses must be honest and open and act with integrity. They must make sure that their conduct at all times justifies both their patients' and the public's trust in the profession.
- Having directed themselves by reference to the guidance given at [74] and [76] in Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Grant [2011] EWHC 927 (Admin), the Committee found that the Appellant's failures in respect of not disclosing her arrest, criminal investigation and charges potentially placed patients at an unwarranted risk of harm, as her misconduct in concealing these concerns prevented her employer from conducting a proper risk assessment of her in order to determine whether she was a suitable candidate for the job. The Appellant's misconduct had breached the fundamental tenets of the nursing profession. Her actions brought the reputation of the profession into disrepute. The Committee was satisfied that confidence in the nursing profession would be undermined if its regulator did not find charges relating to dishonesty to be extremely serious. The panel found that all four limbs of the Grant test are engaged.
- The Committee recognised that the question of impairment of fitness to practice was forward looking and went on to consider whether the Appellant's was remediable and had been remedied.
"The panel went on to consider whether you remain likely to act in a way that would put patients at risk of harm, would bring the profession into disrepute and breach the fundamental tenets of the profession in the future. In doing so, the panel considered whether there was any evidence of insight and remediation.
The panel acknowledged that you have engaged throughout the proceedings and have reflected on the situation which shows a degree of insight around the charges you had previously admitted to. The panel noted that there are no further concerns since the allegation raised against you and you had made a full and frank disclosure to your current employers. You have also provided the panel with references which includes testimonials which speak to your good character.
The panel determined that your insight is developing in relation to your dishonesty. However, you are still focused on the personal difficulties you have experienced from the time of your arrest through to the NMC investigation, rather than focusing on the potential impact on patients or on the wider public confidence due to your conduct. Furthermore, the panel did not have sight of relevant training certificates or formal activities that enabled deeper reflection on your part to show evidence of strengthening of practice.
The panel is therefore of the view that there is a risk of repetition based on your limited insight into how your misconduct had the potential to impact patients and on the nursing profession. The panel therefore decided that a finding of impairment is necessary on the grounds of public protection.
The panel bore in mind that the overarching objectives of the NMC are to protect, promote and maintain the health, safety and wellbeing of the public and patients, and to uphold and protect the wider public interest, which includes promoting and maintaining public confidence in the nursing profession and upholding the proper professional standards for members of the profession. Having regard to your dishonesty in this case and your serious departure from the requirements of the code to promote professionalism and trust, the panel determined that a finding of impairment is also necessary on public interest grounds.
In light of all the above, the panel concluded that your fitness to practise is currently impaired".
The Committee's determination of sanction
- The Committee then addressed the question of the appropriate sanction. The Committee stated that in reaching their decision on sanction, they had regard to all the evidence that had been adduced in the case and to the Sanctions Guidance published by the NMC. They had borne in mind that any sanction imposed must be appropriate and proportionate and, although not intended to be punitive in its effect, may have such consequences.
- The Committee stated the matters which they judged to be aggravating features of the Appellant's misconduct –
"(1) You placed patients at an unwarranted risk of harm in concealing your arrest, criminal investigation and charges which prevented your employer from conducting a proper risk assessment of you to determine whether you were a suitable candidate for a job involving the assessment of vulnerable adults.
(2) You did not inform your employer in relation to your arrest, ongoing criminal investigation and charges for a sustained period of time despite this escalation of the seriousness and the multiple opportunities you had to work to the principles of The Code, by coming forward and disclosing matters.
(3) You only told your employer when forced to do so due to impending NMC proceedings.
(4) You had allowed your personal interest to outweigh your duty to be honest, open and truthful with your employer and the NMC.
(5) You abused a position of trust.
(6) You have demonstrated insufficient insight, with the primary focus of your reflection and remorse being on the negative impact the NMC investigation has had on yourself rather than the impact on the employer, the profession and the public.
(7) There has not been any evidence of your consideration of how you will maintain your honesty during any future challenging personal and professional times.
(8) Your pattern of misconduct was over a lengthy period of time.
(9) You demonstrated a number of breaches of and showed a lack of regard for The Code".
- The Committee then stated the mitigating features which they had taken into account in reaching their judgment as to the appropriate sanction –
"(1) You have shown a degree of insight around the charges you had previously admitted to, albeit predominantly in relation to the impact on you personally.
(2) You have disclosed the details of the criminal proceedings to your subsequent employers.
(3) You have a record of previous good character and are now working with a supportive employer who has attested to your current good conduct and character.
(4) You apologised and admitted most of the charges.
(5) You were going through a period of challenging personal circumstances, which caused you some anxiety".
- Having considered and rejected taking no action, imposing a caution order and imposing a conditions of practice order as inappropriate to the circumstances of the Appellant's case, the Committee turned to consider whether the imposition of a suspension order was the appropriate sanction. The Committee referred to the Sanctions Guidance, which provides a non-exhaustive checklist of matters to help with the decision whether a suspension order is or is not appropriate. Those matters include –
(1) A single instance of misconduct but where a lesser sanction is not sufficient;
(2) No evidence of harmful deep-seated personality or attitudinal problems;
(3) No evidence of repetition of behaviour since the incident;
(4) The Committee is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour.
- Having referred to the Sanctions Guidance, the Committee gave the following reasons for concluding that a suspension order was not the appropriate sanction in the Appellant's case –
"The panel determined that none of the factors as set out above are fully present in this case and therefore it determined that a suspension order was not the appropriate or proportionate sanction.
The panel considered that whilst the incidents in this case occurred in an isolated period of time in your career as a nurse, they did not involve a single instance of misconduct. They involved repeated incidents of dishonest behaviour and deliberate concealment on your part over a period of one year and five months. The panel considered this to be serious and, whilst noting your superficial reflection, found that there is evidence of deep-seated attitudinal problems.
The panel acknowledged that there was no evidence to suggest you had repeated the dishonest behaviour since May 2023, but in the intervening time, you have failed to demonstrate sufficient insight into the importance of honesty and integrity to the role of a Registered Nurse. Consequently, the panel considered that there remains a risk of you repeating the misconduct.
The panel reminded itself of its findings at the impairment stage. Whilst you had accepted the factual findings of the panel, and that the charges found proved amount to misconduct, the panel was not satisfied that you had taken full responsibility for your actions and shown sufficient understanding of why they were wrong. The panel concluded that you had demonstrated insufficient understanding of how your actions impacted on your employer, on public trust in the nursing profession and the potential impact on patients.
Taking all of this into account, given the serious level of dishonesty in this case and the lack of sufficient evidence of insight, the panel did not consider that a period of suspension would be sufficient to protect patients and maintain public confidence in the profession".
- The Committee referred to the following "key considerations" which are to be taken into account before imposing the sanction of a striking-off order –
(1) Do the regulatory concerns about the nurse, midwife or nursing associate raise fundamental questions about their professionalism?
(2) Can public confidence in nurses, midwives and nursing associates be maintained if the nurse, midwife or nursing associate is not removed from the register?
(3) Is striking-off the only sanction which will be sufficient to protect patients, members of the public, or maintain professional standards?
- The Panel then stated the following reasons for judging that the imposition of a striking-off order was the appropriate and proportionate sanction in the Appellant's case –
"Your misconduct, as highlighted by the facts found proved, was a significant departure from the standards expected of a registered nurse. The panel determined that the serious breach of the fundamental tenets of the profession evidenced by your actions is fundamentally incompatible with your remaining on the register.
The panel considered your dishonest behaviour, which involved concealing your arrest, ongoing criminal investigation and charges from your employer. It considered that this concealment was a sustained deliberate deception over a period one year and five months for the purpose of personal financial gain. The panel was of the view that it was your duty to inform the NMC (as set out in 23.2 of The Code) and your prospective employer of the ongoing criminal investigation and later charges. The panel determined that your behaviour and your failure to disclose the truth of your position until you were forced to do so, was wrong from the outset. The panel concluded that this was fundamentally incompatible with being a registered professional.
The panel is aware that honesty and integrity are fundamental tenets of the nursing profession, and it considered that your behaviour raised fundamental questions about your professionalism and trustworthiness.
The panel noted the hardship such an order may cause you and has taken full account of all that has been put forward on your behalf in this regard. However, this is outweighed by the public interest in this case.
Balancing all of these factors and after taking into account all the evidence before it during this case, the panel determined that the appropriate and proportionate sanction is that of a striking-off order. Having regard to the effect of your actions in bringing the profession into disrepute by adversely affecting the public's view of how a registered nurse should conduct herself, the panel has concluded that nothing short of this would be sufficient in this case. It determined that a striking off order sufficient to protect patients and members of the public and to maintain public confidence in the profession.
The panel considered that this order was necessary to mark the importance of protecting the public, maintaining public confidence in the profession, and to send to the public and the profession a clear message about the standards of behaviour and conduct required of a registered nurse".
The grounds of appeal
- The Appellant appeals against the decision to impose a striking-off order. The Appellant contends that a striking-off order was a disproportionate sanction to impose in her case. She argues that the appropriate and proportionate sanction was a 12 month suspension order.
- The Appellant advances four specific grounds of appeal –
(1) The Committee wrongly double counted factors that constituted central allegations as aggravating features.
(2) The Committee wrongly concluded that there was a risk of repetition based on lack of insight.
(3) The Committee was wrong to conclude that there had been a risk to patients and that the Appellant had acted for financial gain.
(4) The Committee's decision to strike the Appellant off the register had been disproportionate.
Legal framework
- The powers of the court are stated in article 38(3) of the Order. The court may dismiss the appeal; allow the appeal and quash the decision under appeal; substitute for the decision appealed against any other decision which the Committee could have made; or remit the case to the Committee to be disposed of in accordance with the Court's directions. Rule 52.21(3) of the Civil Procedure Rules provides that the court will allow an appeal where the Committee's decision was wrong, or unjust because of a serious procedural or other irregularity. By virtue of paragraphs 19.1(1)(h) and (2) of Practice Direction 52D, the appeal is by way of a rehearing. In Sastry v General Medical Council [2021] EWCA Civ 623 at [102], the court emphasised that the jurisdiction of this court is appellate not supervisory: the appeal is by way of a rehearing in which this court is fully entitled to substitute its own decision for that of the Committee.
- The approach to be adopted in determining appeals under article 38(3) of the 2001 Order is well settled. The principles are essentially those that are summarised by the Divisional Court in General Medical Council v Jagjivan [2017] EWHC 1247 (Admin); [2017] 1 WLR 4438 at [40] (omitting some case citations) –
"In summary:
i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Part 52. A court will allow an appeal under CPR Part 52.21(3) if it is 'wrong' or 'unjust because of a serious procedural or other irregularity in the proceedings in the lower court'.
ii) It is not appropriate to add any qualification to the test in CPR Part 52 that decisions are 'clearly wrong'….
iii) The court will correct material errors of fact and of law…. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing….
iv) When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.21(4).
v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46; [2007] 1 WLR 1460 at paragraph 16, and Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169, at paragraph 36.
vi) However there may be matters, such as dishonesty or sexual misconduct, where the court "is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …": see Council for the Regulation of Healthcare Professionals v GMC and Southall [2005] EWHC 579 (Admin); [2005] Lloyd's Rep Med 365 at paragraph 11, and Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169, at paragraph 36(c). As Lord Millett observed in Ghosh v GMC [2001] UKPC 29; [2001] 1 WLR 1915 at 1923G, the appellate court "will afford an appropriate measure of respect of the judgment in the committee … but the [appellate court] will not defer to the committee's judgment more than is warranted by the circumstances".
vii) Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public.
viii) A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal's decision unjust (see Southall v General Medical Council [2010] EWCA Civ 407; [2010] 2 FLR 1550 at paragraphs 55 to 56)".
- In Bawa-Garba v General Medical Council [2018] EWCA Civ 1879; [2019] 1 WLR 1929 at [60]-[67], the Court of Appeal said that since the decision as to appropriate sanction following a finding that a medical practitioner's fitness to practise had been impaired was an evaluative one based on many factors, the appellate court should only interfere if there had been shown to be an error of principle in carrying out the evaluation, or for any other reason, the evaluation was wrong, in that it fell outside the bounds of what the specialist adjudicative body (in this case, the Committee) could properly and reasonably decide.
Discussion
Summary of submissions
- For the Appellant, Ms Bracken submitted that the Committee had been wrong to determine that a striking-off order was the appropriate and proportionate sanction in the circumstances of this case. In the present case, there was no challenge to the Committee's conclusion that the charges admitted by and found proven against the Appellant amounted to professional misconduct. Nor did the Appellant challenge the Committee's conclusion that her fitness to practise was impaired. It was accepted that this was a case in which it would be difficult to formulate effective conditions of practice. A suspension order was the appropriate and proportionate sanction, given that the Appellant's misconduct involved dishonesty.
- It was acknowledged that in many cases in which the registrant's misconduct is founded upon non-disclosure to the Respondent or to an employer, the appropriate and proportionate sanction will be a striking-off order. However, it was submitted, such cases ordinarily involve a failure to disclose an actual conviction or similar sanction, a clearly evidenced motivation on the part of the registrant to secure a financial gain, such as a higher salary or enhanced employment status, and the discovery of the non-disclosure by the employer or the Respondent without any positive action being taken by the registrant. Counsel submitted that the presence of those three factors ordinarily justifies the sanction of striking off in order to ensure the protection of the public and to maintain public confidence in the nursing profession.
- However, it was submitted, a proper and factually accurate assessment of the circumstances of the Appellant's misconduct, the extent of her insight into her actions, the lack of any real risk of repetition of her dishonesty and the absence of risk to patients showed that the sanction of striking off was disproportionate. For the protection of the public, it was not necessary to go further than 12 months suspension followed by a review of the Appellant's fitness to return to practise. The wider public interest in promoting and maintaining public confidence in the nursing profession and upholding proper professional standards would be properly served by a suspension order.
- For the Respondent, Ms Alabaster accepted that the Appellant had raised issues in her appeal which articulated her strong disagreement with the assessment of appropriate sanction made by the Committee. However, it did not follow that the Committee was wrong to determine that a suspension order was not the appropriate or proportionate sanction in this case. The Committee had approached the question of sanction in accordance with the approach stated in the Sanctions Guidance, considering each sanction separately and in ascending order of seriousness. The Committee had founded their determination on the evidence that was before them. They had given detailed and proper reasons for concluding that a striking-off order was the appropriate and proportionate sanction. The Committee had explained why that sanction was justified both for the proper protection of patients and the public, and to maintain public confidence in the maintenance of proper standards of behaviour and conduct in the nursing profession.
- For the appeal to succeed, it was necessary for the Appellant to persuade the court that the Committee's determination of sanction was wrong in the sense that it fell outside the bounds of what they could reasonably and properly decide, as a specialist adjudicative tribunal. The Appellant was unable to do so. Mere disagreement with the Committee's evaluation of the evidence, and of the range of factors which fell to be considered in determining the appropriate sanction to impose, was not a proper justification for interfering with the Committee's decision.
Ground 1
- The Appellant's complaint under ground 1 is that the Committee was wrong to regard certain matters as aggravating features, since they were matters which were no more than the basis for the Committee's finding of misconduct. To give weight to those matters also as aggravating features was double counting and tipped the scales unfairly against the Appellant in the overall balance when the Committee came to determine the appropriate and proportionate sanction.
- In my view, this complaint is unjustified. The Sanctions Guidance identifies as aggravating features those aspects of a case which make it more serious. The fact that a particular matter provides the basis for a finding of misconduct does not mean that the Committee may not give added weight to that matter as a feature of a registrant's actions or omissions which increases the seriousness of their misconduct. In this case, the Committee clearly identified those matters which they considered to have that effect. None was a matter to which the Committee could not reasonably have regard as increasing the serious nature of the Appellant's misconduct.
- Ms Bracken submitted that the Committee had been wrong to find that the Appellant's misconduct was aggravated by her having abused a position of trust. She had been dishonest, but there was no evidence of any specific abuse of trust which could fairly be said to have aggravated the severity of her misconduct. The Committee did not identify the position of trust which the Appellant was said to have abused.
- However, as Ms Alabaster submitted, the Committee heard evidence about the nature of the contract between Maximus UK and the Department for Work and Pensions. Maximus UK is required to operate very strict criteria in relation to registrants in their employment who are or have been the subject of inquiries or investigation by the police of their professional body. Such information would need to be drawn to the attention of the Department for consideration whether they were willing to accept that person being or remaining in Maximus UK's employment. I have referred earlier in this judgment to the "Criminal Record Declaration" which the Appellant was required to but failed to complete when submitting her application form to Maximus UK on 6 February 2022. The explanation given for the questions posed under that heading in the application form leaves the applicant in no doubt that present and future employees of Maximus UK are placed in a position of trust, which obliges them to disclose information about any criminal proceedings brought against them, by virtue of the need to protect Government owned assets. The Appellant's failure to disclose the fact of her arrest, and subsequently to disclose the fact of her being charged to Maximus UK during her employment by them, provided a proper evidential basis for the Committee's finding that she thereby abused a position of trust.
- I do not accept that the Committee was wrong to treat lack of regard for the Code as an aggravating feature. Although failure to comply with the Code may be an inherent element of misconduct, it was not beyond the bounds of reasonable judgment for the Committee to regard the Appellant's breach of a number of the provisions of the Code as increasing the seriousness of her misconduct in this case. The relevant requirements of parts 20 and 23 of the Code are each important elements of a nursing practitioner's professional standards and responsibilities. The Appellant's failure to fulfil those requirements, a finding which she does not challenge, was reasonably capable of being seen by the Committee as an aggravating feature of her case.
- The third complaint under ground 1 is that in finding that there was no evidence of how the Appellant would maintain her honesty in the face of future challenging circumstances, the Committee failed to take account of the Appellant's own actions in giving full disclosure to both Acton Banks Healthcare and BCOP in September 2023 and February 2024. That honest and transparent behaviour in the face of the challenge of these regulatory proceedings was evidence that she would maintain her honesty during future professional and personal challenges.
- That submission, however, misses the particular point which the Committee found to be an aggravating feature of the Appellant's case. The Committee clearly acknowledged that the Appellant had disclosed the details of the criminal proceedings against her to her subsequent employers after being dismissed by Maximus UK. The Committee weighed that factor in the Appellant's favour as a mitigating feature of her case. But that did not go to the specific concern which the Committee found to be an aggravating feature, which was the lack of evidence of the Appellant's consideration of how she would maintain her honesty when faced with future challenges. Having formed their own judgment about the inadequacy of the Appellant's reflection on her past actions and on how to avoid repeating her dishonest behaviour in the face of such challenges, the Committee was entitled to regard that as an aggravating feature of the Appellant's case.
Ground 2
- Ms Bracken submitted that the Committee had been wrong in concluding that there was any realistic risk of the Appellant repeating the misconduct which she had admitted and for which she was to be sanctioned. There was no proper basis for that conclusion. Her behaviour since her misconduct was clear evidence both of the sufficiency of her insight and of the lack of such risk. In their letter of 29 April 2024, BCOP had provided a very positive assessment of the Appellant. BCOP said that in early February 2024 they had chosen to re-employ the Appellant in the knowledge of the ongoing regulatory investigation, because she had never given them any reason to doubt her sincerity and honesty. It was wrong for the Committee to give significant weight to the lack of evidence of attendance at training courses. As an indicator of both insight and the risk of repetition of her dishonest behaviour, the Appellant's actual behaviour since she was dismissed by Maximus UK was more reliable evidence that she presented no such risk in practice.
- In my judgment, the Committee gave careful consideration to the level of insight which the Appellant had developed into her misconduct. That was quintessentially a matter for the judgment of the Committee. They acknowledged the Appellant's acceptance of their factual findings and that the charge proven against her amounted to misconduct.
- The Committee referred back to the findings on which they had based their conclusion that the Appellant's fitness to practise remained impaired. Those findings included the Committee's acknowledgment that the Appellant had engaged throughout the regulatory proceedings against her and had reflected on the situation, showing some insight around her admitted dishonesty. The Committee further noted that there had been no further concerns since her dismissal by Maximus UK, that she had made full and frank disclosure to her subsequent employers and had provided references which attested to her good character. The Committee had found that the Appellant's insight was developing in relation to her dishonesty.
- However, they found the Appellant still to be focused on the personal difficulties she had experienced from the time of her arrest through to the NMC investigation, rather than focusing on the potential impact on her patients or on the wider public confidence due to her conduct. In my judgment, that is a finding that the Committee was reasonably able to make, in the light of the evidence before them, including the contents of the Appellant's statement of reflection dated 13 December 2023 which I have set out above. In the light of that finding, it was reasonable for the Committee to place weight on the absence of formal training activities undertaken by the Appellant which might have provided evidence of her strengthening of practice.
- The Committee's overall finding on the questions of insight and the risk of repeating behaviour was as follows –
"The panel acknowledged that there was no evidence to suggest you had repeated the dishonest behaviour since May 2023, but in the intervening time, you have failed to demonstrate sufficient insight into the importance of honesty and integrity to the role of a Registered Nurse. Consequently the panel considered there remains a risk of you repeating the misconduct".
- I am unable to accept that carefully qualified finding was one that fell beyond the bounds of what the Committee could reasonably conclude, in the light of all the evidence before them.
Ground 3
- Ground 3 raises two distinct issues.
- Firstly, it is the Appellant's contention that there was no evidence to support the Tribunal's finding that the Appellant posed a risk to patients. The Appellant accepted that her failure to disclose her arrest and subsequently to disclose her being charged had prevented Maximus UK from carrying out an informed risk assessment of her suitability for the post for which she had applied and subsequently held prior to her dismissal. However, there was no evidence to suggest that the Appellant would have been deemed unsuitable for the role of functional assessor had she made full and proper disclosure to Maximus UK.
- It is again necessary to address that contention by reminding oneself of the Committee's actual findings. In concluding that the Appellant's dishonesty amounted to misconduct, the Committee found that her concealment of her arrest, the criminal investigation and the charges brought against her had prevented her employer carrying out a proper risk assessment of her suitability for the role of functional assessor. The Panel acknowledged that the Appellant's dishonesty related to events outside her clinical practice, but were of the view that her dishonesty raised the risk that were she to face a challenging situation in a clinical setting, she may again not be open and honest and so place patients at risk. That assessment of risk was founded on the nature of the Appellant's actual misconduct in this case. It was supported by that evidence and indeed by her own admitted dishonesty.
- In my view, therefore, it is not correct to say that the Committee's assessment of potential future risk to patients lacked any evidential basis or support.
- The second issue under ground 3 concerns the Committee's characterisation of the Appellant's dishonesty, when drawing together their conclusions on sanction and explaining their reasons for concluding that the appropriate and proportionate sanction was a striking-off order –
"… your dishonest behaviour, which involved concealing your arrest, ongoing criminal investigation and charges from your employer. … this concealment was a sustained deliberate deception over a period of one year and five months for the purpose of personal financial gain".
- It was submitted on behalf of the Appellant that the Committee's description of the nature of her dishonesty was not supported by the evidence. Ms Bracken submitted that the evidence before the Committee provided no proper or reasonable basis for their conclusion that the Appellant's dishonesty in failing to disclose was a sustained and deliberate deception for the purpose of personal, financial gain. The Appellant had given evidence that her initial failure to disclose her arrest to Maximus UK had been motivated by fear and anxiety; and that she had not disclosed the criminal proceedings later as she had been advised that the charges against her were likely to be dropped. She was keen to be appointed to a new job which offered her the opportunity to develop different skills, but there was no evidence that she concealed the facts of her arrest and the subsequent charges for the purpose of financial gain.
- In order to address that submission, it is necessary to set out the evidence that was before the Committee as to what motivated the Appellant to conceal matters from Maximus UK.
- The Committee had before them the notes of the formal disciplinary conduct meeting held on 27 July 2023 between Maximus UK and the Appellant. Those notes record the following exchanges between the manager at Maximus UK who conducted the meeting (MM) and the Appellant.
"MM. Stated [SM] told [her line manager] only when she received the letter from NMC and was unable to work due to suspension of her registration, but she was aware of the issue when she was arrested and then this was ongoing investigation. This has happened prior to the employment at CHDA. What was the reason to inform your line manager only on 30/05/2023?
SM. Stated she was advised by her solicitor that she will be acquitted and didn't want to tarnish her reputation by communicating information that might not be true.
…
SM. She felt really anxious, and her anxiety got the best of her. Stated rather than dealing with it she avoided dealing with it".
- The Appellant gave oral evidence before the Committee on 8 May 2024. She was asked to explain her reasons for leaving her employment at Robert Harvey House in early 2022 –
"Q. In January 2022, why did you decide to leave that job?
A. We went through some challenges with COVID, and I fancied doing something different. I have worked at Robert Harvey House since qualifying.
Q. When you left Robert Harvey House, where did you go?
A. To Maximus.
Q. What was your role of Maximus?
A. It was as a functional assessor.
Q. Was that different to or similar to your previous role?
A. Completely different".
- Later in examination-in-chief, Counsel drew the Appellant's attention to her answer "No" to the question "Do you know of any other matters in your background which might cause your reliability or suitability to have access to government assets to be called into question?" on her completed job application form dated 6 January 2022 -
"Q. The question is, do you know of any other matters, so other matters beyond NMC proceedings, beyond criminal prosecution, do you know of any other matters in your background which might cause your reliability or suitability to have access to government assets to be called into question? So, it is a question giving you the opportunity Ms Mitchell to declare to Maximus any other matters you think is relevant to your application and your answer was no. Knowing that you were subject to a police investigation, why did you answer no?
A. I think I was just scared in all honesty, just scared that maybe I would not get the job, and that they would probably think that I was (inaudible).
…
Q. You are applying for a job with a new employer, with Maximus. You know that you are subject to a police investigation. They do not know that, but did you think that fact might be relevant to them?
A. Yes.
Q. Why do you think you being subject to a police investigation might be relevant to your new employer?
A. I mean, at the time, I was obviously informed that the charges may be dropped, but my own legal team were in high belief that it would be dropped so my thought process was I was hoping that I would not have to declare it, being honest, but I was scared because it is a new employer and they do not know my character, so I was hoping that I would not have to declare it but I do, looking back, I do understand the importance of being open and honest because ultimately, it affects the business, does it not (inaudible) the nursing profession.
Q. I'm just going to ask you to break that answer down a little bit, Ms Mitchell, you said that you understand the importance of being open and honest because it affects the nursing profession. What specifically do you mean by that?
A. Just that it is important as a nurse to promote professionalism and trust and part of that is being open and honest with patients, with colleagues, with employers.
Q. Were you open and honest when you did not tell Maximus you were subject to a police investigation?
A. No.
Q. Looking back now, how do you feel about that?
A. I regret it, I mean, at the time, I was just really anxious and worried about everything being a single parent already (inaudible). (Inaudible) being away and then having to provide for the kids, I was just worried and panicking and I was so anxious and just scared, but looking back, I do regret it, and I mean, I have definitely learned from it, the impact it has had on me, my family".
- During the Appellant's cross examination, there were the following exchanges.
"Q. And when you were asked by your counsel whether you thought the fact of being under investigation was relevant, you said it was a relevant fact and I'm going to put to you that when you were answering this question, you knew that you should have selected yes, because you were under a criminal investigation.
A. I should have.
…
Q. And I'm going to suggest to you Ms Mitchell that the reason you selected no is because you wanted to hide the fact that you were, or you had been arrested and under criminal investigation from your perspective employer.
A. I mean, I did hide it. (Inaudible), I was dishonest. I mean, I am not sort of arguing against the fact that I did not declare and I should have. Yes, you are right, I should have declared it. As I mentioned, it was just out of fear and anxiety but yes, you are right, I should have declared it.
….
Q. … first question on page 10, which talked about any convictions or any other pending actions…what has changed from how you view that question now to how you would have viewed it back then?
A. I think then I was acted out of fear and anxiety and feeling uncomfortable whereas now, as you can see, with the two employers now that I have been employed with since then, whether it is uncomfortable or I am anxious or scared off, I have disclosed them, so looking back when you say was that an opportunity missed, it was an opportunity missed and (inaudible) the reason it was missed is because of my headspace at the time and which was dishonest, like, I am not saying it was not dishonest and it does not show like integrity and but that is why I understand it the way I did previously".
- The Appellant was re-examined on the answer she gave in relation to her two employers since she was dismissed by Maximus UK.
"Q. You go on to say that you have made that disclosure to the two employers you have had since then.
A. Yes.
Q. And so my question is, how is it that you have been able to overcome any fear or anxiety that you might feel in making that disclosure to employers you have had since Maximus?
A. How have I overcome it?
Q. Exactly.
A. Well, I had many months of reflection and just doing the right thing. Literally, I cannot say I was less anxious and less fearful and less scared because I was not. It was just [doing] the right thing, regardless of what the outcome would be whether that meant I would not be able to be employed or what, like it was literally just doing the right thing. I was still as anxious and scared as I was with Maximus but obviously after reflection and my learning through the process, I am just not going to make the same mistake again".
- Ms Bracken submitted that there was no evidence to support the Committee's finding that in failing to disclose her arrest, the criminal investigation and the subsequent charges, the Appellant had acted for or been motivated by personal financial gain. She had been in employment at Robert Harvey House and had remained in post since disclosing the fact of her arrest to BCOP in November 2020. She had stated in evidence that she had decided to apply for the job of functional assessor at Maximus UK because she wanted to try a different role to that she had been working in since she qualified as a nurse in 2012. Moreover, she had consistently stated that her failure to disclose the fact of her arrest and the criminal investigation to Maximus UK was because of her anxiety and fear that she would not be successful in her application; and that her later failure to disclose the fact of being charged was because she had been advised that the charges against her were likely to be dropped.
- Ms Alabaster submitted that the change from the Appellant's role at Robert Harvey House was a career step which would usually be designed, either immediately or in the future, to encompass some personal financial gain. The Committee had been entitled reasonably to find that the Appellant had allowed her personal interest to outweigh her duty to be honest, open and truthful with her employer and the NMC. It was reasonable for the Committee to conclude that the Appellant's dishonesty had been motivated by personal, financial gain.
- In my view, the Committee was correct in finding that the Appellant had allowed her personal interest to outweigh her duty to be honest, open and truthful with her employer. That was no more than she had herself admitted in her evidence to the Committee. She had been fearful and anxious that if she disclosed the fact of her arrest and the ongoing criminal investigation to Maximus UK, it might jeopardise her chances of being employed by that organisation who, unlike BCOP at Robert Harvey House, had no experience of her professional and personal qualities. As the Appellant admitted in oral evidence, she should have declared those matters to Maximus UK and it was dishonest of her not to have done so. She had admitted through her counsel that she had acted dishonestly in concealing those matters during her employment at Maximus; and in also failing to disclose the fact of being charged with offences of conspiracy. She explained that her reason for failing to disclose those charges was that she had been advised that the charges were likely to be dropped. Nevertheless, in her statement of reflection she accepted that she had not been open and honest with her employer and had failed to remind herself of her duty of disclosure under the Code.
- There was, however, no suggestion in her evidence or in the documents before the Committee that the Appellant's particular purpose in concealing her arrest, ongoing criminal investigation and charges from her employer was for her financial gain. In her oral evidence, the Appellant gave as her reason for applying for the post of functional assessor at Maximus UK that having worked at Robert Harvey House since qualifying as a nurse in 2012, she "fancied doing something different". It was not suggested to her in cross-examination that her purpose in concealment when applying for the job with Maximus UK was for her financial gain. It was not in evidence that if successful, the Appellant would secure a significant increase in her salary. There was no evidence of any comparison between the remuneration which she was then receiving from her work at Robert Harvey House and what she could expect to receive if employed by Maximus UK. The evidence was that having disclosed the fact of her arrest in November 2020 to BCOP, she remained in post at Robert Harvey House. In other words, on the basis of the evidence, at the time of her job application in early 2022, the Appellant was in work and could expect to remain employed by BCOP in the event that she was unsuccessful in applying to Maximus UK.
- The Committee's finding that the Appellant's concealment from Maximus UK of her arrest, ongoing criminal investigation and charges was "a sustained deliberate deception for the purpose of personal, financial gain" appears to have been made in response to a submission advanced on behalf of the Respondent in support of a striking-off order, that the Appellant's dishonesty was "serious, sustained for a significant period of time and resulted in personal, financial gain". In other words, what had been argued to have resulted from the Appellant's dishonesty was found to have been the deliberate purpose of her dishonesty. However, neither the Respondent's submission nor the Committee's finding of a deliberate intention to deceive for the purpose of securing a financial gain was supported by the evidence. Nor had that purpose been put to the Appellant in cross-examination.
- In the light of this analysis, I have come to the conclusion that the Committee went too far in finding that the Appellant's dishonesty had as its deliberate and specific purpose her personal, financial gain. I do not consider that is a finding that could fairly and reasonably be made on the evidence before the Committee. To that extent, I uphold ground 3.
- It is important, however, not to overstate the extent of the Committee's error. Had the Committee confined their characterisation of the Appellant's dishonesty to have involved the deliberate concealment of the fact of her arrest, ongoing criminal investigation and charges from her employer for a period of over seventeen months, thereby allowing her personal interests to outweigh her duty to be honest, open and truthful both with her employer and the Respondent, the Appellant would have had no grounds for complaint.
Ground 4
- The issue raised under this ground, and indeed the principal issue raised in the appeal, is whether the Committee was wrong to decide that, in this case, a period of suspension from practice would be insufficient sanction for the protection of the public and to maintain public confidence in the nursing profession. Unless the Appellant succeeds in that argument, she cannot sustain the contention that the imposition of a striking-off order was a disproportionate sanction.
- As was stated in Bawa-Garba, the Committee's decision as to appropriate sanction following a finding that a nursing practitioner's fitness to practise is impaired is an evaluative one based on the many factors which the Committee have taken into account. This court should only interfere with that decision on appeal if there has been shown to be an error of principle in carrying out that evaluation, or the evaluation was wrong because it fell outside the bounds of the Committee as a specialist adjudicative body could properly and reasonably decide.
- It was not suggested that the Committee had made any error of principle in making their determination of sanction in this case. In my view, the Committee's approach to that determination was both orthodox and properly reflected the Sanctions Guidance. The Committee sought to draw a fair balance between the Appellant's rights and the overarching objective of public protection. The Committee plainly directed themselves of the need to take care that the sanction which they imposed did not exceed what was necessary in order to achieve that objective. They had well in mind the particular reasons for their finding that the Appellant's fitness to practise as a nurse was currently impaired. They considered each of the possible sanctions in turn in ascending order of seriousness, at each stage giving their reasons for concluding that the sanction was insufficient to address the objective of public protection, and finally explaining why they judged a striking off order to be the appropriate and proportionate response in this case. The Committee also correctly took into account the wider need to maintain public confidence in the nursing profession. Finally, in terms of approach, the Committee followed the Sanctions Guidance in clearly identifying those aspects of the case which they considered to be aggravating and mitigating features.
- It follows that in order for this ground of appeal to succeed, it must do so on the basis that the Committee nevertheless went wrong in their determination of sanction because they reached a conclusion which fell outside the bounds of what they could properly and reasonably decide. The appeal court will generally exercise caution before interfering with the specialist adjudicative body's determination of sanctions and what is needed in order to maintain public confidence and proper standards in the profession.
- I have in mind, however, that in this case, the Respondent's charge against the Appellant was founded upon dishonesty. In Jagjivan dishonesty was identified as one of those matters where the appellate court may have greater confidence that it can assess what is required by way of sanction to protect the public or to maintain the reputation of the nursing profession. In such a case, therefore, the court may be prepared to give rather less weight to the specialist expertise of the Committee than in a case in which the misconduct and impairment of fitness to practise is founded upon matters of clinical practice.
- Moreover, in this case I have concluded under ground 3 that the Committee did, to a limited extent, overstate the seriousness of the Appellant's misconduct when they came to their decision on sanction. It is, therefore, necessary for me to consider whether on a true understanding of the Appellant's dishonesty, the decision to make a striking-off order was disproportionate and a suspension order for 12 months would be sufficient sanction to protect the public and maintain public confidence in the nursing profession.
- In any case involving dishonesty, in order to arrive at a fair and proportionate judgment as to the level of sanction that is appropriate to impose, it is necessary to understand the nature of the dishonest conduct as clearly as possible on the basis of the evidence before the tribunal. That point is well made in the Sanctions Guidance, which states –
"Honesty is of central importance to a nurse, midwife or nursing associate's practice. Therefore allegations of dishonesty will always be serious and a nurse, midwife or nursing associate who has acted dishonestly will always be at some risk of being removed from the register. However, in every case, the Fitness to Practise Committee must carefully consider the kind of dishonest conduct that has taken place. Not all dishonesty is equally serious".
- In this case, the Appellant dishonestly concealed from her employer, Maximus UK, that she had been arrested on charges of conspiracy to supply controlled drugs and mobile phones into a prison, that there was an ongoing criminal investigation into those matters and that some 3 months after her employment began, she had been formally charged with 2 offences. She maintained that deception through non-disclosure for a period of some 17 months until she received from the NMC notice of an interim order suspending her from practice whilst the criminal proceedings against her were in progress. She did so notwithstanding the clear terms in which disclosure was required of her in answering questions on the job application form which she completed in early January 2022, the clear terms of paragraph 23.2 of the Code, which she accepted she was unfamiliar with at the time, and despite having attended compliance training with her employer during the relevant period.
- The Sanctions Guidance states –
"Generally, the forms of dishonesty which are most likely to call into question whether a nurse, midwife or nursing associate should be allowed to remain on the register will involve:
- Deliberately breaching the professional duty of candour by covering up when things have gone wrong, especially if it could harm to people receiving care
…
- Premeditated, systematic or longstanding deception".
- It is a beyond reasonable argument that the Appellant's dishonesty in the present case was of that serious character. She both deliberately breached her professional duty of candour and deceived her employer by failing to disclose important information which she had been required to disclose over a sustained period of some 17 months. This was serious professional misconduct which undoubtedly raised the question whether she should be allowed to remain on the register. The only real question in those circumstances is whether a suspension order would be sufficient sanction.
- The Sanctions Guidance states that a key matter to evaluate in determining whether a suspension order is appropriate is whether a period of suspension will be sufficient to protect patients, public confidence in nurses and midwives, or professional standards. The Guidance states –
"Use the checklist below as a guide to help decide whether it's appropriate or not. This list is not exhaustive:
- A single instance of misconduct but where a lesser sanction is not sufficient
- no evidence of harmful deep seated personality or attitudinal problems
- no evidence of repetition of behaviour since the incident
- the committee is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour".
The Guidance further advises that when considering seriousness, the Committee will look at how far the nurse or midwife fell short of the standards expected of them.
- The Sanctions Guidance states that the most serious sanction of striking-off is likely to be appropriate when what the nurse has done is fundamentally incompatible with being a registered professional. Key considerations are, firstly, whether the regulatory concerns about the nurse raise fundamental questions about their professionalism; secondly, whether public confidence in nurses can be maintained if the nurse remains on the register; and thirdly, whether striking-off is the only sanction which will be sufficient to protect patients, members of the public, or maintain professional standards. Reference is made to the guidance on seriousness, which includes the guidance which I have already highlighted above in relation to cases involving dishonesty. The following is also stated –
"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 Committee found that none of the factors on the checklist given in the guidance as to cases in which a suspension order may be appropriate were fully present in this case. In my judgment, the Committee was clearly correct in that view. This was a case of serious and sustained dishonesty which did call into question the Appellant's understanding of and commitment to the professional standards which were expected of her.
- The Committee was entitled to be sceptical of the degree which she had truly developed insight into her dishonesty and fundamentally unprofessional behaviour. Her reflection statement, although expressing her deep remorse and regret for her actions, did not face up straightforwardly and without qualification to the fact that her dishonesty was fundamentally inconsistent with her professional responsibilities and in conflict with her code of conduct. There is no clear insight into how she failed to disclose such important information to her employer over a period of well over a year of her employment, in the face not only of the clear duty to so under the Code, with which she should have been familiar, but also of the compliance training which she received from Maximus UK during that period.
- In my judgment, this is a case in which the professional misconduct and the impairment of the Appellant's fitness to practise on the findings of the Committee do regrettably raise fundamental concerns about her professionalism. It is regrettable, because I acknowledge and accept that she is committed to her patients and find no reason at all to doubt the evidence given by her former employer, BCOP, as to the high quality of her clinical skills and commitment to her work during her time at Robert Harvey House and more recently at Anita Stone Nursing Home. I also acknowledge that the Appellant did engage with the Committee to show her remorse, admit the majority of the charges against her and seek to reassure the Committee through her reflection statement and her evidence that there would be no repeat of the dishonesty which is the basis for these regulatory proceedings. The Committee was correct to find that her insight was developing into her misconduct.
- If the question was limited only to the need for an appropriate sanction for the protection of patients and the public, I would have concluded that a period of suspension for 12 months would have been sufficient and proportionate sanction. However, I am unable to conclude that the Committee was wrong in their overall judgment that only a striking-off order would be sufficient sanction in this case. In my judgment, this was a case of serious and sustained dishonesty, conduct which fell very far short of the standards expected of a registered nurse and resulted in a serious impairment of the Appellant's fitness to practise. The Committee's decision to strike off the Appellant from the register was not disproportionate. The Committee overstated the nature of the Appellant's dishonesty to the limited extent I have identified under ground 3 above. Nevertheless, the degree of her dishonesty, her resulting professional misconduct and impairment of her fitness to practise means that only a striking-off order is sufficient sanction to maintain public confidence in the nursing profession and the standards of professional conduct which the public expects of members of the nursing profession. The Committee's overall conclusion remains justified and correct.
- The appeal must accordingly be dismissed.