Case Update: Ajala v Nursing and Midwifery Council [2012] EWHC 2976

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;

1. there was no harm to patients or risk to patients;
2. the CCC did not pay sufficient regard to the principle of the non-punitive nature of the sanctions;
3. the public confidence in the profession is not served by the sanctions;
4. the criteria for a caution was met in the sanction and should have been considered further;
5. in all the circumstances of N’s case a different sanction was appropriate.

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 [2011] WLR 1915) or ‘outside the range of what could be regarded as reasonable’ (Devon v General Medical Council [2005] EWHC 174).

All grounds of appeal were rejected. 

1. Dishonesty is an offence which brings N’s trust and integrity into question, such that a patient who came into contact with her and was fully informed of the offences would have concerns.
2. The present case was clearly distinguishable from Selvarajan v General Medical Council [2008] EWHC 182 where the delay between the relevant behaviour and the hearing was 10-12 years. In any event, it is inevitable that there will be a punitive element in any suspension or strike off, despite that not being its purpose.
3. Haddon-Cave J reiterated the words of Mitting J in Parkinson v Nursing and Midwifery Council [2010] EWHC 1898; ‘A nurse found to have acted dishonestly is always going to be at severe risk of having his or her name erased from the register’.
4. The panel properly went through the various sanctions that were open to them in a process that was ‘meticulous’. In answer to other intricate criticisms of the CCC’s reasoning it was held that ‘it is not always helpful to subject findings of such Panels to a minute forensic examination, as if it is an exercise in statutory construction. A fair reading of the CCC’s reasons leads me to conclude that the hearing and the reasoning cannot be faulted’.
5. There was ‘nothing in this point’; the CCC had made it clear that the convictions were too serious to make a caution order.
6. The submission that this case of dishonesty lay at the less serious end of the spectrum and that the conviction in relation to the breath test was not one of dishonest but ‘poor behaviour’ was rejected as foundering on the fundamental point that the sanction imposed was plainly to address the wider public interest in protection the reputation of the nursing profession.

The offences in this case were sufficient to pass the custody threshold. Just as Laws LJ said in SRA v Sharma [2010] 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.

Sarah Harris