Moijueh v Nursing & Midwifery Council  EWHC 1999 (Admin)
The Administrative Court has declined to overturn the "striking off" of a nurse, M, who was found to have attempted to steal from his employer, notwithstanding that the items concerned were of very low value, he had a previously unblemished record, and he was able to produce positive testimonials from his current employers. While the sanction seemed harsh, the court could not say that the decision to strike M off was wrong in view of his "attitudinal problems" which included a lack of insight into his conduct.
The committee's decision
M was a registered mental health nurse who had been employed to attend to mentally ill prisoners at Pentonville Prison in London. In February 2015 he faced five allegations before a fitness to practise committee of the Nursing & Midwifery Council (the committee).
M admitted allegations 1 to 3, which concerned shortcomings in his care of one patient and 'cutting and pasting' entries in the records of two further patients from earlier entries made by colleagues. The remaining two allegations (4 and 5) amounted to an allegation that M had put a tambourine and two maracas belonging to the prison into his private bag, with the dishonest intention of stealing them.
M denied allegations 4 and 5, and in the course of the hearing:
denied placing the instruments in his bag
said that if, in fact, the instruments were found in his bag, they must have been placed there by colleagues
said that if, alternatively, the instruments had not actually been found in his bag, then his colleagues must have conspired together to concoct a false story.
Notwithstanding M's denials, the committee found allegations 4 and 5 proved, and concluded that his fitness to practise was impaired.
The committee considered the sanctions available to it in order of severity. When considering conditions on M's practice, they noted there had been no evidence of general incompetence on M's part, and that conditions of practice could have been formulated to deal with the concerns identified in allegations 1 to 3. However, in relation to allegations 4 and 5, the committee found: "… the panel did not consider that conditions could be formulated to address the attitudinal aspects of this case. Those included the wider issues of your ethics, accountability, judgment, lack of insight into the consequences of your actions, deflection of blame, disregard for your team and the impact of your behaviour on them".
The committee then considered whether to impose a suspension, and had regard to the following passage from the judgment of Mitting J in Parkinson v NMC  EWHC 1898 (Admin): "A nurse who has acted dishonestly, who does not appear … to demonstrate remorse, a realisation that the conduct criticised was dishonest, and an undertaking that there will be no repetition, effectively forfeits the small chance of persuading the panel to adopt a lenient or merciful outcome and to suspend for a period rather than to direct erasure."
The committee found that M had not shown insight into his conduct in the manner suggested by Mitting J, and that his dishonesty "was sustained because of [his] subsequent denial of that [he] had done". Accordingly, it decided to strike him off.
M did not challenge the factual findings of the committee but appealed against the sanction it had imposed. M's legal adviser emphasised in submissions:
the very low value of the instruments which M had tried to steal (which were worth only a few pounds)
the previously unblemished record of M
the fact that M had gone on to work successfully as a ward manager at a hospital, in respect of which several colleagues had provided positive testimonials.
In turn, the NMC stressed that M continued to deny that he had been dishonest; had compounded matters by seeking to blame his colleagues; had shown no insight; and had made no attempt to explain his dishonesty or apologise for it, even after the committee had found that he had been dishonest.
The court found that it could only interfere with the committee's decision if there was a significant procedural irregularity or error (which it found there was not), or if its decision was wrong. It could also set aside a sanction which was "definitely disproportionate". However, the court noted that it was also obliged to have due regard to the decision and reasoning of the committee: "So if they are wrong, they are wrong. If they are arguably wrong, then I cannot and must not interfere".
The court commented that erasure seemed a high price for attempting to steal two maracas and a tambourine but, on the other hand, "they were the property of [M's] employers… Trust between a nurse and his employers is obviously absolutely vital".
The court found that it was unable to conclude that any part of the committee's decision or reasoning was wrong and that, while its decision might seem harsh, "dishonesty is dishonesty". Accordingly, the appeal was dismissed.