High Court considers applicability of references to case law arising other than from proceedings before the relevant regulator.

Judgement Date: 04 March 2014

Background

The appellant Nurse (N) appealed against a decision of the Nursing and Midwifery’s Conduct and Competence Committee (the Panel) to strike her name from the register in view of findings of misconduct. The Panel found that N had had dishonestly provided counterfeit documents, namely a United Kingdom National Insurance card and United Kingdom Passport, to University College Hospital London (UCHL). The Panel further found that latterly, on or around 27 April 2011, N had dishonestly provided false information as to the circumstances of her leaving UCLH, in that, she completed an application form for Capital Staffing Services and stated that her fixed term contract with UCHL had come to an end whereas the contract had, in fact, been terminated.

N admitted all the charges. The Panel determined the issue of misconduct against the appellant and moved to consider impairment. When considering impairment the Panel took account of a number of positive testimonials that N had produced and the fact that N had admitted the charges and demonstrated remorse. The Panel also took in to account the fact that there were no concerns as to N’s clinical practice and that she did not put patients at risk. The Panel also noted that in engaging in dishonest behaviour on two separate occasions N had demonstrated a lack of insight. Ultimately, the Panel was satisfied that N had acted dishonestly.

With regard to sanction the case presenter submitted that given N’s dishonesty strike-off was the only possible outcome and had regard toParkinson v Nursing and Midwifery Council [2010] EWHC 1898 Admin and Solicitors Regulation Authority v Sharma [2010] EWHC 2022 Admin. In his advice to the Panel the legal assessor referred the Parkinson but made no comment on the case presenter’s mention of Sharma.

Appeal

N appealed the decision of the Panel to make a striking off order on the following grounds:

  1. The public confidence in the profession is not served by the sanction;
  2. The [Panel] did not pay sufficient regard to the principle of the punitive nature of the sanctions;
  3. There was no direct or indirect risk to patients;
  4. The criteria for a suspension order were met in the sanction and should have been considered further;
  5. In all the circumstances of the appellant’s case, a different sanction was appropriate;
  6. A striking off order [was] not proportionate to the facts proven against [N] bearing in mind [her] exemplary record as a good clinician which was corroborated by the references provided to the panel by [her] colleagues;
  7. Lack of reasonableness of the panel’s decision by not taking on board… the allegations made against [N] and the level of remorse and insight that [N]had demonstrated at the hearing which was acknowledged in the panel’s judgement;
  8. A total disregard to the Human Rights Act. The striking-off is a breach of Article 8 of the ECHR as incorporated by the Human Rights Act 1998
  9. A total disregard of the financial impact of such a striking order on [her] livelihood, bearing in mind the evidence given to the panel that [N] was the sole breadwinner of [her] family.

Additionally the respondent, in discharging its obligations to N as an unrepresented litigant, raised a tenth ground of appeal, namely that in Hazan v General Optical Council [2013] EWHC 1807 Mr Justice Leggatt stated the observations in Sharma applied only to solicitors and that therefore the case presenter at the original hearing might be said to have misdirected the panel on sanction.

Decision

In respect of the grounds of appeal raised by N the Court was clear that there was ‘nothing in the appellant’s grounds of appeal… They [raised] no points of principle and certainly [did] not establish the [Panel] was “wrong” in the sense understood by the Civil Procedure Rules’ [21].

The Court opined that what N’s grounds of appeal amounted to was ‘a disagreement with the [Panel]…and an attempt to persuade [the] court to share [N’s] disagreement’ [21].  On scrutiny the Court held that it did not share N’s disagreement and the grounds of appeal advanced by N were dismissed.

The Court declined to deal with the point raised by the case presenter’s reference to Sharma noting that the Panel ‘expressly referred to Parkinson and did not return to Sharma during the critical part of its determination’ [36].

An instructive case highlighting the need for advocates to be cautious in making references to case law arising from proceedings other than before the relevant regulator. The effect of referring to Sharma in this case was to turn an appeal with ‘nothing’ [21] to one which was ‘half arguable’ [36].