Chuah v Nursing and Midwifery Council (NMC)

[2013] EWHC 894 (Admin)

C, a nurse, was struck off in April 2012 by a Conduct and Competence Committee of the NMC (the Committee) after having been convicted of (i) driving with excess alcohol in November 2008 and (ii) assault by beating in June 2009. In the former case, C had been driving while two and a half times over the legal limit and, in the latter, he had assaulted another member of the hospital staff on hospital premises after drinking alcohol.

C admitted the fact of the convictions and the committee accordingly found them to have been proven. C submitted that he had stopped drinking and therefore that his fitness to practise had been but was no longer impaired. However, the committee found that:

  1. damage had been caused to the reputation of the nursing profession which was not easily capable of remediation
  2. although C may have stopped drinking, "the damage had been done" and his fitness to practise remained impaired at that date  
  3. C had provided no evidence of insight into his conduct and, in the committee's view, sought to minimise its seriousness
  4. although there was no evidence of actual harm to patients, there was a risk to the public from the behaviour which led to C's convictions; and  
  5. public confidence in the nursing profession could not properly be maintained in the absence of a finding of impairment given the circumstances surrounding the convictions.

C was struck off.  On appeal, C argued that the question of his fitness to practise involved a ‘forward-looking' exercise. He argued that the committee had erred in its approach because, by the time of the hearing, he had been free of alcohol for nearly a year. The court held that:

  • deciding whether a practitioner’s fitness to practise is impaired involves a 'predictive exercise' in the course of which the panel is entitled to have regard to the way in which the practitioner behaved in the past (as per the judgment of Sir Anthony Clarke MR in Meadow v GMC [2006] EWCA 1390)  
  • the Committee had been entitled to have regard to the public interest in maintaining confidence in the medical profession when determining whether the misconduct impaired the practitioner's fitness to practise. In cases where a firm declaration to promote public confidence in the practitioner and profession is required, efforts made by the practitioner to address his problems and reduce the risk of the relevant misconduct recurring may be of far less significance than in cases such as those involving clinical errors or incompetence (Yeong v GMC [2009] EWHC 1923 cited).

Accordingly, the court found that the committee had been entitled to conclude that C's fitness to practise had been impaired. The court added that, even by itself, the conviction of a nurse for a drunken assault in a hospital could properly have been treated as the kind of offence which justified the finding of impairment.

C also argued that the sanction of strike-off was plainly wrong in circumstances where he had been free of alcohol for 11 months before the hearing. The court noted that, while it was obliged to accord an appropriate measure of respect to the committee's judgment, it could intervene where the Committee’s judgment had been excessive or disproportionate (per Ghosh v GMC [2001] 1WLR 1915), or clearly inappropriate (per Law Society v Salsbury [2008] EWHC (Civ) 1285). The court held that, while the sanction was severe, the Committee had been entitled to view the nature of the assault as being such that only an order of strike-off order was appropriate.

Accordingly, the appeal was dismissed and the strike-off upheld.