Lawyers must fix the problems with gagging orders before it is too late
O v Nursing and Midwifery Council (NMC) [2015 EWHC 2949 (Admin)
Judgement Date 22 October 2015
Mrs O (the appellant) a qualified nurse of Nigerian descent, settled in the UK in 2007 along with her husband and three young children. The appellant worked for the National Health Service (NHS) from approximately 2010. In November 2012, the children were taken into care and the appellant and her husband were charged with ill treatment, pursuant to s.1 (1) of the Children and Young Persons Act 1933. It was alleged that when their children behaved badly, the appellant and her husband would beat the children with a cane or a wire coat hanger. The appellant and her husband pleaded not guilty at trial, which meant that their children had to give evidence against them. In March 2014, both parents were convicted and received 36 week custodial sentences. The appellant later explained that she had entered a not guilty plea out of ignorance in that corporal punishment was acceptable in Nigeria and she was unaware that such a form of chastisement was wrong and illegal in the UK. Between April and June 2013, the appellant attended a parenting course and a parenting assessment concluded that the children would not be at significant risk if returned to their parents. The appellant completed a reflective statement whilst in prison and upon her release conducted further research in respect of parenting skills. She apologised to her children and obtained professional testimonials. Meanwhile, the appellant’s conviction was referred to the Nursing and Midwifery Council (NMC).
The NMC hearing
The day prior to the NMC hearing, the NMC Conduct and Competence Committee received documents from the appellant’s family solicitor who advised that the separate family court proceedings were moving in the direction of reunification of the family. The Committee also received copies of the appellant’s notes and a log setting out the research that she had undertaken. Counsel for the appellant submitted that whilst the appellant admitted that her fitness to practise was impaired on the basis of her conviction, there were no clinical or professional concerns about the appellant’s performance and there was no danger to the public. Counsel emphasised the appellant’s remorse and the remedial work she had done.
The Committee found the appellant’s fitness to practise as a nurse was impaired by the nature of her conviction. The Committee’s decision listed the mitigating factors, including insight and remorse, development of parenting skills, an unblemished nursing career, and previous good character; and a list of aggravating factors which included the appellant’s failure to admit the original offence, therefore causing her children to give evidence against her. The Committee went on to consider the available sanctions in ascending order of gravity as recommended by the Indicative Sanctions Guidance. The Committee ruled out less serious sanctions before considering a suspension order. The Committee decided that a suspension order was not appropriate, which only left striking-off. The Committee went through the key considerations set out in paragraphs 75.1, 75.5, 75.8, and 76 of the Guidance and gave due regard to the mitigating factors before concluding that nothing less than a striking-off order would suffice. The Committee went on to impose an interim suspension order pending the determination of any appeal.
The appellant appealed the NMC’s decision to impose a striking-off order and submitted that:
The appeal was allowed in respect of Committee’s reasoning having been defective and flawed.
In relation to the first ground of appeal, Mr Justice Kerr confirmed that although a guilty plea is a mitigating feature in a criminal trial and a not guilty plea is not an aggravating factor in itself, the consequence of the appellant’s not guilty plea was that the children were required to give evidence against their own parents. Mr Justice Kerr agreed with the Committee; that the way in which the parents conducted their defence, in that they had state that their children were lying, was an aggravating factor and to some extent counterbalances the quality of the appellant’s contrition. Therefore it was found that the first ground of appeal had no merit.
In respect of the second ground of appeal, the Committee had provided a list of mitigating factors that was not exhaustive but also not further developed. The Committee had made an error in that they recorded the submissions in mitigation without properly evaluating them. In reaching its decision with regard to sanction, the Committee considered available sanctions in ascending order of gravity as provided for by the Guidance. When considering suspension, the Committee, in appearance, gave equal weight to paragraph 71.2 of the Guidance as to the other considerations set out at paragraphs 71.1 and 71.3-7, whereas paragraph 71.2 should be applied as a conclusion of the assessment of the other considerations, rather than a ‘key consideration’ itself. Paragraph 71.2 of the Guidance provides that:
71. [Suspension] may be appropriate when some or all of the following factors are apparent (this list is not exhaustive):
71.2. The misconduct is not fundamentally incompatible with continuing to be a registered nurse or midwife in that the public interest can be satisfied by a less severe outcome than permanent removal from the register.
Mr Justice Kerr confirmed that in this case, the Committee “proceeded straight to paragraph 71.2 when considering suspension, saying it was ‘of the view that paragraph 71.2 was a particular consideration in this case’”.
The Committee’s decision indicated that it had ruled out suspension as a possible sanction prior to undertaking a comprehensive evaluation of the appellant’s mitigation. Once suspension had been rejected by the Committee the only sanction available was a striking-off order, which meant that effectively it had already been decided that striking-off was the appropriate sanction before taking into account the key considerations:
“The operative part of the Committee’s reasoning is the part in which it ruled out suspension, since that was the exercise which determined that striking-off would necessarily follow. During that part of the Committee’s reasoning process, there was no evaluation worth the name of the points made in mitigation by Counsel. The error in this approach is contributed to by the way in which the Guidance is drafted. In paragraph 71, the ‘key considerations’ in a suspension case include that set out at 71.2, which in effect asks the question whether suspension is too lenient… Once the Committee had concluded that suspension was insufficient, the case was effectively over. No other sanction remained available except striking-off. All others had been ruled out. Thereafter, there was still no evaluation of the points made in mitigation on the appellant’s behalf. They were never properly weighed in the balance against the public interest in maintaining trust in the nursing profession and the regulator. For that reason, I am satisfied that the reasoning of the committee was defective and flawed, and that its decision was wrong and cannot stand.”
Mr Justice Kerr found the second ground of appeal to be well founded. In respect of the third ground of appeal he found that it is a matter for the disciplinary body, “properly approaching its task as set out in [his] judgment”, to review whether the sanction imposed, namely striking-off, was disproportionate. The case was remitted to the NMC for the appropriate sanction to be re-determined.
Disciplinary panels are to take care when making a determination in respect of a sanction between suspension and striking-off. Mr Justice Kerr confirmed in his judgment that one of the key considerations in the Guidance to be applied when considering suspension, namely that at paragraph 71.2, should not be classified as a consideration at all, but rather as “a conclusion which either does, or does not, flow from an assessment of the other considerations set out under paragraph 71” and as such should be addressed at the end of the Committee’s deliberations. Further, where there are only two possible outcomes as to an appropriate sanction, for example as in this case between suspension and striking-off, it is critical that all available mitigation is considered during both the consideration of suspension and consideration of striking-off.
For further information, please contact Luke Gregory.
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