Case Update: High Court hold that panel of the NMC were unduly lenient in imposing 4 month suspension for dishonest nurse

Professional Standards Authority for Health and Social Care v Nursing and Midwifery Council, Mr D Wilson, [2015] EWHC 1887 (Admin)

Judgement Date: 5 June 2015

This was an appeal brought by the Professional Standards Authority (PSA) pursuant to section 29 of the National Health Service Reform and Health Professions Act from a decision made by a Panel of the Conduct and Competence Committee (the Panel) of the NMC on 9 January 2015 to suspend the registrant of Mr Wilson for 4 months.  The appeal was supported by the NMC.  Both the Authority and the NMC submit that the decision of the Panel on sanction in this particular case was wrong, and they invited the learned Judge to quash the suspension and to substitute the suspension for an order striking Mr Wilson off the register.

The facts

Mr Wilson (W), who was born in Liberia, moved to Michigan USA, in August 1984.  In December 1988, he was arrested in Michigan. His name at that stage was Alexander Monla Wulu.  In early 1989, he was charged with one count of armed robbery, one count of armed robbery and one count of possessing a firearm.  In May 1989, he escaped from custody before his trial. In December 1993, he was arrested in the Netherlands, and was then deported from the Netherlands to the USA.

In January 1995, Mr Wilson was convicted of two counts of armed robbery and one count of escaping from lawful custody and was sentenced to 5 years' imprisonment. In 2001, he was deported from the USA to Liberia, having served over 3 years of his sentence.

In August 2001, W changed his name from Alexander Monla Wulu to Demonique Wesseh Wilson (the name by which he is currently known). He arrived in the United Kingdom and applied for asylum, again using the name Wilson.

In January 2004, W applied to study nursing through UCAS at the University of Salford, again, in the name of Wilson. Mr Wilson stated on the form that he had no criminal convictions. He also left the ‘birth name before the age of 16’ section blank.

In September 2004, he began a Bachelor of Science course in Nursing at the University of Salford, and on 13 December 2007, he obtained British Citizenship.  In November 2008, he was arrested while he was attempting to enter the USA, and he returned to the United Kingdom after spending about 6 months detained in the United States

In July 2010, W applied to be registered with the NMC. He did not, on the application form, disclose his convictions, nor that his name at birth was Alexander Monla Wulu. He made a declaration that his health and character were sufficiently good for him to be able to practise safely and effectively.

In August 2010, W was registered as a nurse. In November 2011, he was employed as a registered nurse by Barchester Health Care. He had failed to disclose his convictions to Barchester Health Care, or that his name at birth had been Alexander Monla Wulu.

In December 2011, on a search of his home (for unrelated matters) the police found a letter dated 7 May 2009 from the United States District Court relating to an attempted illegal entry into the USA by Alexander Monla Wulu. Police enquiries (including fingerprinting) then established that Alexander Monla Wulu and Demonique Wesseh Wilson were the same person.

Mr Wilson was referred to the NMC by Greater Manchester Police in August 2012.

In January 2013, Mr Wilson was dismissed by Barchester Health Care for disclosing neither his convictions nor that he had previously been known by a different name.

A 6 day hearing took place before the NMC Panel on dates in October 2014 and January 2015, that dealt with charges relating to the above conduct. On 9 January 2015, the Panel made decisions about misconduct, impairment of fitness to practise and sanction. The sanction that was imposed on Mr Wilson was suspension for a period of 4 months.

The Appeal

The PSA referred the case to the High Court on the basis that the sanction imposed by the Panel was unduly lenient, not having due regard for the safety of the public and the reputation of the profession.

The issue was whether the penalty was one which the disciplinary body on the facts, and taking into account the objective of the disciplinary proceedings, could reasonably have imposed.

The PSA, supported by the NMC, submitted that the findings of the Panel were inadequate, principally in relation to impairment, and that the penalty did not adequately reflect the findings which should have been made on that question.  Mr Wilson overall position was that the penalty was not unduly lenient. 

The High Court reviewed the relevant case law, including R (Council for Health Care and Regulatory Excellence v Nursing and Midwifery Council and Kingdom [2007] EWHC 1806, Parkinson v Nursing and Midwifery Council [2010] EWHC 1898 and Council for Health Care and Regulatory Excellence v Nursing and Midwifery Council and Grant [2007] EWHC 1806 and the NMC’s Indicative Sanction Policy, the Court considered the adequacy of the decision. 

Laing J made a number of preliminary comments, namely that;

• The allegations did not involve any suggestion that W was incompetent.  This meant that factors relating to his ability to do his job were of secondary importance
• The panel were required to assess the seriousness and implications for the public interest of past acts of dishonesty which had led to Mr Wilson’s registration and his acquiring a job.  This meant that questions of remediability and of a risk of repetition were also of secondary importance.
• An important consideration for the regulator in cases such as this was reputation of the profession.  This means that individual factors, such as the impact of the penalty on the Registrant, while relevant, were of secondary importance.
• While the nature of the crimes to which W was convicted is important, the focus of the charges was his three recent failures to disclose the convictions to the regulator and to his employer.  This meant that the factors connected with W’s efforts to rehabilitate himself after he committed the crimes in the US were also of secondary importance.

By reference to the present case it was held that whilst the Panel had quoted the decision of Cox J in Grant, they erred in the weight afforded to the factors considered;

• They found that the risk of repetition was unlikely.  This seemed to Laing J to be irrelevant for the reasons given in her preliminary comments.  It was commented that of course there was no risk of repetition of failing to disclose convictions, bearing in mind they were now well known to the NMC. 
• The panel had found that W had some insight.  Whilst this was partly correct, the insight was insufficient; W maintained and still maintains that he did not act dishonestly.
• When the panel said that W’s error was in not making himself familiar with the guidelines, this was at odds with its finding of deliberate dishonesty.
• The Panel gave undue weight to the effect of the penalty on W. 

The court ultimately accepted the submission of the PSA and the NMC that the findings made on impairment were ‘inadequate and erroneous’ because there was a mismatch between those findings and the misconduct which the NMC had found W guilty of.

In relation to sanction, it was held that the Panel were ‘quite wrong’ to consider that this was a case that could appropriately be dealt with by way of suspension. This was repeated conduct that was fundamentally incompatible with the Registrant’s continuing to be a registered nurse. This was a case where the public would not be satisfied by a less sever sanction than striking off.  Importantly, W did not at the time of hearing have the key insight which would be required, namely that his conduct was dishonest. In short, the panel had taken into account mitigating factors which were either irrelevant to a case of this kind, or should have been given far less weight.

The Panel had found that W had been dishonest on three separate occasions in the recent past and had circumvented both the NMC’s registration process and the employer’s selection process by depriving them of information which was essential to enable them to make an informed decision. 

As well as being a clear-cut example of a case where the dishonesty is so serious that nothing short of strike off will do, this case also provides a number of more general points about the balancing act to be carried out in cases where the relevant consideration is the public interest.  The case reminds panels that where the reputation of the profession is at stake, considerations of risk of repetition and personal mitigation will be given less weight.