O v NMC [2015] EWHC 2949 (Admin)

Case in brief

A nurse was struck off after being convicted of beating her children. On appeal, the Administrative Court observed that the NMC panel had effectively decided to strike her off at the point in its deliberations when it ruled out suspension as a possible sanction. However, the panel did not undertake a proper analysis of the nurse's mitigation at that point and, accordingly, its decision on sanction was defective.

Crown Court proceedings

O, a nurse, moved from Nigeria to the UK with her husband in 2007. In 2010 she obtained work as a nurse with the NHS. Both O and her husband would discipline their children using corporal punishment. In the case of O, the children were beaten with a cane or stick and a wire coat hanger.

In 2012, the children were taken into care and O and her husband were charged with assaulting or ill-treating a child, contrary to section 1(1) of the Children and Young Persons Act 1933. In 2013, O attended a parenting course and an assessment following that course resulted in a recommendation that the children should be reunited with their parents, subject to supervision.

In March 2014, both O and her husband were found guilty and were sentenced to 36 weeks in prison. Both had pleaded not guilty and the judge, in his sentencing remarks, noted that their defence had been that the children were lying, meaning that the children were forced to give evidence against their parents.

Fitness to practise proceedings

At the hearing of an NMC fitness to practise committee (the committee) in January 2015, O admitted that her fitness to practise was currently impaired by reason of her conviction.

Having found that O's fitness to practise was impaired, the committee considered the NMC's Indicative Sanctions Guidance (the Guidance), which recommends that sanctions are considered in ascending order of seriousness, and sets out a non-exhaustive list of factors to be considered at each stage.

When considering whether to impose a suspension (having worked through the Guidance and ruled out lesser sanctions), the committee recorded that it had had careful regard to the Guidance and the factors listed there, and considered that the following factor in favour of suspension (paragraph 71.2 of the Guidance) was of particular relevance in the case:

"The misconduct is not fundamentally incompatible with continuing to be a registered nurse or midwife in that the public interest can be satisfied by a less severe outcome than permanent removal from the register".

It stated that it considered that O's actions in assaulting her children were incompatible with remaining on the register and that, in the circumstances, a suspension order would not be sufficient.

The committee then went on to consider striking off, taking account of the relevant factors set out in the Guidance, and noted that it had given due regard to the mitigating factors in the case, before concluding that nothing less than striking off would be sufficient.

The appeal

O appealed on three grounds, namely:

  1. The committee had wrongly given weight to O having denied the criminal charges
  2. The reasoning as to why a striking off order had been imposed was inadequate
  3. The sanction of striking off was disproportionate in all the circumstances.

The court found that there was no merit in ground 1. However, it found that the committee had erred in its approach to sanction, in that its decision indicated very strongly that it had ruled out suspension as a sanction before it had undertaken any proper evaluation of O's mitigation.

In the court's view, once the committee had decided that suspension was not an appropriate sanction, striking off was inevitable. The operative part of the committee's decision was therefore the decision to rule out suspension as a sanction. However, during that part of the decision-making process, there had been no meaningful evaluation of the mitigation advanced on O's behalf.

The court confirmed that there was nothing wrong in principle with considering sanctions in ascending order of seriousness, as the committee had done. However, where the only two remaining sanctions were suspension and striking off, it was critical that all available evidence in mitigation was taken into account when considering suspension, as well as when deciding whether to strike off the registrant.

The court found that the drafting of the Guidance contributed to the error, in that paragraph 71.2 was listed among the other factors to be considered when deciding whether to impose a suspension (numbered 71.1 to 71.7), suggesting that it was to be given equal weight to the other factors. However, paragraph 71.2 is not, in fact, a "consideration" but the conclusion which either did or did not flow from an assessment of the other factors at paragraph 71.

Accordingly, the appeal succeeded on ground 2, and the matter was remitted to the committee for reconsideration of sanction. In the circumstances, there was no need for the court to consider ground 3.