Two bites of the apple- limitation in professional negligence cases
Decision date: 5 October 2012
Court upholds suspension of nurse convicted of dishonesty offences.
A nurse (N) pleaded guilty on 1st October 2010 to two offences of dishonesty: the first of being in possession of an identity document with the intention of using it for establishing a registerable fact about yourself, contrary to the Identity Cards Act; and secondly, an offence contrary to the Fraud Act. In short, N had opened a mail collection account at a post office using false identification. Over the next 4-5 days she collected various letters from said sorting office which had included assorted documents in the names of other individuals, including a bank card and driving licence.
The offences were said to cross the custody threshold. In light of mitigation that had been advanced, including that N was the sole carer for her 6 year old son who was unwell, the prison sentence of 16 weeks concurrent for both offences were suspended for 12 months. N was ordered to complete 100 hours unpaid work.
On 8 February 2010, N had also been convicted of failing to provide a specimen of breath for analysis.
These two convictions were brought before the Conduct and Competence Committee (CCC) of the Nursing and Midwifery Council (NMC) on 24 August 2011. It was alleged that as a result of those convictions, N’s fitness to practice was impaired.
The CCC found that N’s fitness to practise was impaired and found that the appropriate sanction was a suspension order for a period of 6 months.
N appealed that decision on the grounds that;
On an appeal against sanction, it was rehearsed, an appellant must establish not just that the order was ‘wrong’ but was ‘excessive and disproportionate’ (Ghosh v General Medical Council  WLR 1915) or ‘outside the range of what could be regarded as reasonable’ (Devon v General Medical Council  EWHC 174).
All grounds of appeal were rejected.
The offences in this case were sufficient to pass the custody threshold. Just as Laws LJ said in SRA v Sharma  EWHC 2022 ‘there is harm to the public every time a solicitor behaves dishonestly. It is in the public interest to ensure that, as it was put in Bolton, a solicitor can be ‘trusted to the ends of the earth’. Adopting the words of counsel for the NMC, the last words of the Court were that, by analogy, ‘there is harm to the public and the NMC every time a nurse behaves dishonestly’.
Although no new points of law arise from this case, it is a useful summary of the law in relation to dishonesty in cases of professional discipline. It is also a reminder that inviting the Court to subject findings to a ‘minute forensic examination’ is unlikely to be fruitful.
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