Judgment date: 23 April 2013

The High Court holds that although decision to erase Nurse was ‘harsh’ and ‘severe’, it was neither ‘clearly inappropriate’ nor ‘plainly disproportionate’.

The Appellant Nurse (N) appealed a decision to remove his name from the Respondent’s register.

Factual Background

In November 2008 N was convicted of driving with excess alcohol and in April 2009 the West Midlands Police informed the NMC of the same. The NMC were also informed subsequently that N had also been convicted of an offence of assault by beating in June 2009. The assault conviction involved H assaulting a member of hospital staff on hospital premises, whilst heavily intoxicated.An Interim Suspension Order was imposed in April 2010 and the matter referred to a Conduct and Competence Committee in July 2011.

N requested that a preliminary meeting take place as he wished to make an application to transfer the matter to the Health Committee. A preliminary hearing took place, at which the application to transfer to the Health Committee was considered, and rejected. This application was renewed on a second occasion, but again rejected.

On 23 and 24 April 2012 a final hearing took place, at which N attended and represented himself. The two convictions above were admitted by N and the Panel duly found them proved. At the impairment stage the NMC’s case presenter adduced further evidence which he argued was relevant on the issue of impairment, namely evidence of a conviction for drink driving in 2005. On day two of the hearing, N made an application for an adjournment so that he could adduce the evidence of a Psychiatrist to show that he was no longer alcohol dependent. This application was rejected given the lateness of its making and given that the NMC did not dispute that N was now alcohol free. The Panel went on to find that N’s fitness to practise was impaired. The Panel found that there was an on-going lack of insight, on-going risk to the public and that the absence of a finding would damage confidence in the profession. The Panel went on to find that the only appropriate sanction was striking off. Their reasoning was that N’s behaviour was not confined to an isolated incident, that N lacked insight and failed to appreciate the seriousness of his actions.

The Appeal

The Court rejected a number of N’s argument as being wholly without merit. In relation to the provision to the Panel of the evidence of the 2005 drink drive offence, N argued that this should not have been received by the Panel at the stage it was. The Court held that although that may be right, it plainly had no significant impact on the decision other than at the Sanction stage when it was plainly relevant. In any event, neither side had objected to the documents being put before the Panel. In the Court’s view, the Panel exercised it discretion properly and reasonably in refusing N’s application to adjourn and it was fully entitled to reach the conclusion that N’s current fitness to practice was impaired. In relation to sanction, N argued that he had been alcohol free for 11 months before the hearing and had remained so since. He pointed out that given the interim suspension order, the striking off order will not take effect until the appeal process is over. It will then be 5 years from that date until he can re-apply. He submitted that a Conditions of Practise or Suspension Order would have been more appropriate and that the Panel had failed to explain why conditions were not appropriate.

The Court reiterated that when considering a statutory appeal against sanction, the Court should accord an appropriate measure of respect to the judgment of the Panel as to the sanction necessary to maintain professional standards. The Court must decide whether the sanction was appropriate and necessary in the public interest, or excessive and disproportionate. It can only interfere is if it concludes that the sentencing decision was ‘clearly inappropriate’ (Law Society v Salsbury [2008] EWCA (Civ) 1285).

It was held that ‘the striking off order might be regarded as harsh, although (in part) this is a consequence of the limited choice of sanction available to a panel.  However, as Sir Thomas Bingham MR observed in Bolton v Law Society, a disciplinary panel is better able that the Court to weight up the seriousness of professional misconduct’. Whilst accepting that the sanction imposed by the Panel was ‘severe’, the Court was not persuaded that it was wrong in principle, such that it could be said to be considered as either ‘clearly inappropriate’ or ‘plainly disproportionate’. The Court went on to say that the position may have been different if H had been a nurse of previously impeccable character and had been able to demonstrate that the offences were ‘entirely exceptional’, which was not the case here.

The Court will be reluctant to interfere with a sanction imposed by a professional panel, unless it can be found to be clearly inappropriate or plainly disproportionate. It is not sufficient for a sanction to have been ‘harsh’ or ‘severe’.  Given the practical consequences of an appeal where an interim suspension order is in place (i.e. the start of the sanction is delayed), practitioners defending professions must balance the chances of successfully appealing sanction only against that important consideration.