Smart v Nursing and Midwifery Council [2015] EWHC 1807 (Admin)

Background

On 17 December 2004, Mr Smart was convicted of theft of various prescription drugs at Chelmsford Crown Court and sentenced to a community punishment order of 90 hours.  Following this conviction, the NMC brought fitness to practise proceedings, and in 2007, Mr Smart was struck of the Register as a result of his conviction.  He subsequently reapplied to join the Register, and was reinstated on 14 April 2010.  Mr Smart then began employment at Imperial College Healthcare NHS Trust (‘the Trust’) as a Band 5 Staff Nurse within the Clinical Haematology Department at Hammersmith Hospital.

The Trust subsequently discovered that Mr Smart had not disclosed on his application forms that he had a previous criminal conviction.  Mr Smart also failed to disclose that he had been struck of the NMC Register, as Mr Smart had stated that he left his previous post to go travelling, but he had in fact been dismissed.  The Trust also discovered that he had declared that he was a clinical educator in his previous role, when in fact he had been employed as a Health Care Assistant.

The hearing before the disciplinary panel

The hearing before the Panel took place in two stages, first on 11 and 12 November 2013 and subsequently from 3 to 6 March 2014.

The charges were as follows:

1. On or before 21 March 2011, when applying for a band 5 staff nurse position within The Clinical Haematology Department of Imperial College Healthcare NHS Trust;

  1. did not disclose on the model declaration form that you had been convicted of a criminal offence when you had been convicted of a criminal offence;
  2. did not disclose on the model declaration form that you had been removed from the Register of Nurses following fitness to practice [sic] proceedings when you had been removed from the Register of Nurses;
  3. confirmed on the model declaration form that all the information you had provided was correct and complete when it was not;
  4. stated on the application form that you had worked for the Central and North West London (CNWL) Trust between 2005 until September 2009 and had left the post to go travelling when you had been dismissed from that employment in August 2007;
  5. stated on your application form whilst employed for the CNWL Trust that you were a clinical educator when you were employed as an Health Care Assistant/Nursing Assistant.

2. Between 21 March 2011 and 29 February 2012 when employed as a band 5 staff nurse position within The Clinical Haematology Department of Imperial College Health Care NHS Trust:

  1. did not provide evidence of your qualifications when requested to do so;
  2. did not provide evidence of your identity when requested to do so.

3. Your actions in relation to particulars 1(a) and/or (b) and/or (c) and/or (d) and/or (e) were dishonest.

by reason of the facts above”, Mr Smart’s fitness to practise was “impaired by reason of misconduct”.

Mr Smart admitted Charge 1(a) and also Charge 1(c) insofar as it applied to Charge 1(a). However, he denied all the other charges. The Panel did not find Charge 2(a) proved, and the NMC did not pursue Charge 2(b). The Panel did, however, find the other charges 1(b), 1(c), 1(d), 1(e) and 3) proved. The panel therefore found that Mr Smart had been dishonest.

The panel found Mr Smith’s fitness to practise was impaired at the time of the hearing due to his misconduct.  The panel imposed a sanction of a striking off order.

The appeal

Mr Smart’s grounds of appeal were in the main that the panel was bias, racist and placed undue weight on the Trust’s evidence and not enough weight on Mr Smart’s evidence.

Mr Justice Picken dismissed Mr Smart’s appeal, and at paragraphs 54 – 58 of his judgment, sets out his reasons for doing so, and endorses the panel’s approach at the substantive hearing.  He sets out that Mr Smart failed to demonstrate that the panel’s findings were ‘wrong’, and finds strong evidence to the contrary:

“I agree with Mr Amesbury [counsel for the NMC] when he submits that the Panel's approach to the matters which it had to determine was careful and considered. I agree, in particular, that the Panel's conclusions were, as Mr Amesbury puts it, ‘amply supported by reference to contemporaneous documents'. All in all, having regard to the approach which, on the authorities, the Court on an appeal such as this ought to take (as summarised by Langstaff J in Bhatt v GMC at [9]), in my judgment, the Panel's findings are, indeed, ‘unassailable’. Mr Smart, with respect, has come nowhere near establishing, still less ‘with reasonable certainty’, that the Panel's findings are ‘wrong’.  On this basis, there is absolutely no justification for this Court reaching any contrary conclusion.”

As to the allegations made by Mr Smart, in his grounds of appeal, that the Panel was biased and dishonest, there is absolutely nothing in these allegations. There is nothing, in particular, to suggest that the make-up of the Panel was such as to entail bias on its part. Nor is there anything to suggest that the Panel had any motive or interest in acting towards Mr Smart in a biased or dishonest way. Similarly, the suggestion that the Panel discriminated against Mr Smart because of his race is unsupported by any evidence and, my having studied the transcripts of the hearings, simply not borne out by anything which I have read.

It is quite clear to me that the Panel acted towards Mr Smart in a manner which was entirely fair and appropriate. Indeed, as Mr Amesbury pointed out, the fact that the Panel found that two of the charges (Charges 2(a) and 2(b)) were not proved demonstrates the fairness with which the Panel conducted the proceedings. That fairness is apparent also from the Panel's reasons, as set out in the Decision Letter, which contain a scrupulously balanced explanation for the conclusions and findings reached by the Panel. This applies throughout and in particular in respect of the Panel's findings in relation to Charge 3, where the reasons for the conclusion that Mr Smart acted dishonestly are not only clearly expressed but also compelling.  In fairness, when I asked Mr Smart what he meant by his references to these matters, he made it clear that he was not intending to say that the Panel was biased or dishonest or racist, and that he had used such descriptions simply because he was unfamiliar with how grounds of appeal should be framed and not because he really meant to allege bias, dishonesty or racial discrimination.”

Mr Smart’s appeal was therefore dismissed in all respects.  

Mr Justice Picken re-emphasises the reluctance of an appellate court to interfere with a professional panel’s findings and that the original panel is a specialist tribunal of medical professionals, who are best placed to judge their fellow members.  

Mr Justice Picken confirms the judgment of Mr Justice Cranston in Cheatle v GMC [2009] EWHC 645 (Admin) at paragraph [33] after reference to Bolton v the Law Society [1994] 1 WLR 512 that It would require a very strong case to interfere with the sentence imposed by a disciplinary committee, which is best placed weighing the seriousness of professional misconduct.  Mr Justice Picken confirms that only in ‘very strong cases’ should appellate courts disturb a professional panel’s previous findings, and finds that the present case is nothing like the “very strong case” to which Cranston J was referring in his passage.