[2017] EWHC 476 (Admin)

1 March 2017

This was an appeal to the High Court by Fariba Mirtorabi (the Registrant) against a decision of the Nursing and Midwifery Council’s (NMC) Conduct and Competence Committee (CCC) to strike her off the Register of nurses.

Background

The Registrant was the subject of proceedings before the NMC’s CCC. The charges against the Registrant arose from incidents that occurred between 25 November 2014 and 13 December 2014 when she was employed as an agency nurse at a care home. The charges related to the administration of medication to residents.

The hearing before the CCC was held in July 2016. The Registrant was present and represented at the hearing. The CCC found 3 of the 4 charges proven and concluded that the Registrant’s actions amounted to misconduct.

When considering the question of current impairment, the Registrant’s representative agreed that the CCC were entitled to see the Registrant’s fitness to practise history with the NMC and an agreed note was prepared. The following information was provided to the CCC;

  • On 1 November 2013, the Registrant’s registration had been suspended by the CCC for a period of 6 months following a finding in relation to charges involving the administration of medication. In addition, the Registrant was found to have acted dishonestly when completing an application form by failing to include details of her previous employment;
  • On 28 January 2016, the CCC imposed a Conditions of Practice Order on the Registrant’s registration for a period of 2 years. This Order was not in place when the current charges arose. The charges in this matter were that the Registrant was asleep whilst on duty and that she administered and/or caused to be administered medication when no covert medication policy was in place.

The CCC found current impairment and imposed a Striking Off Order. The CCC found that ‘the only proportionate and appropriate sanction in this case, sufficient to protect the public and maintain confidence in the profession is a Striking Off Order’.

Grounds of appeal

The Registrant appealed to the High Court on the basis that the CCC had erred in law and otherwise acted wrongly or unjustly in their determination that the only proportionate sanction to be applied in all the circumstances was that she be struck from the Register when;

  1. The CCC placed undue reliance and consideration on previous referrals;
  2. There were lesser sanctions which were proportionate in all of the circumstances.

Outcome of appeal

It was accepted on behalf of the Registrant that the CCC was entitled to have regard to the Registrant’s regulatory history when it was considering whether her fitness to practise was impaired and the appropriate sanction. The Registrant’s appeal was based on her contention that the CCC placed too much weight on the previous decisions which led to a more unfavourable assessment of her conduct than would otherwise have been the case.

In considering the appeal, Mrs Justice Lang found that the CCC was entitled to take into account previous decisions at both the impairment and sanction stages of the proceedings. She noted that the CCC had rightly focused on the key issues of whether the Registrant’s misconduct was remediable and the likelihood of repetition. The Registrant’s history of misconduct was directly relevant to these issues. The previous disciplinary charges included errors that were of a similar nature to those that were being considered by the CCC and the CCC was therefore justified in concluding that there was a pattern of misconduct.

In relation to the sanction imposed, Mrs Justice Lang found that the CCC was entitled to conclude, in the exercise of its judgement that it was proportionate to strike the Registrant from the Register for the reasons that were set out in their decision. She concluded that the CCC correctly directed itself as to the law and correctly applied the guidance as set out in the NMC’s Indicative Sanctions Guidance. Mrs Justice Lang confirmed that the Registrant had failed to establish that the CCC’s decision was wrong and the appeal was therefore dismissed.

This case reaffirms the position that Panels are entitled to be informed of a Registrant’s regulatory history when they are considering the question of impairment and sanction. This information is manifestly relevant, particularly in a case such as this where the alleged conduct was of a similar nature to previous misconduct. It is important for Panels to record clearly in their decision the extent to which they have considered or relied upon a Registrant’s regulatory history and the reasons for this, particularly when deciding which sanction to impose.