When is the right time to question a medical decision?
High Court replaces striking off order with 12 month suspension for nurse convicted of dangerous driving.
Mr Isaghehi was convicted of dangerous driving for an offence which took place in August 2010. He had essentially grown frustrated with the driving of a female driver in front of him, overtaken her, and then steered twice into her lane in an aggressive and threatening manner. Both cars lost control, the female driver’s car turned over and she had to be cut out of the vehicle. Neither the female driver nor her passenger sustained any serious physical injuries. Mr Isaghehi denied dangerous driving at trial but was found guilty by the jury and was sentenced to imprisonment for 15 months. He was released in July 2012.
Mr Isaghehi came before a Conduct and Competence Committee (the Committee) of the Nursing and Midwifery Council (NMC), who concluded that his fitness to practise was impaired and that the appropriate sanction was for Mr Isaghehi to be struck off from the Register.
The Panel was of the view that a conviction of this nature was extremely damaging to the reputation of the profession and therefore hard to remedy. The evidence before the Committee did not satisfy them that Mr Isaghehi had demonstrated any insight, with nothing to explain why he behaved as he did on the day and nothing to suggest that he understood the seriousness of his actions. They commented that his actions had the potential to kill or seriously injure and that, as a mental health nurse, he was required to be able to control his anger. They concluded that a striking off order was necessary for the protection of the public and to maintain public confidence in the profession. An interim suspension order was made pending appeal to the High Court.
Mr Isaghehi appealed the decision of the Committee to strike him off, pursuant to Article 38 of the Nursing and Midwifery Order (2001).
The approach of the Court was confirmed to be that as set out in the case of Ajala v Nursing and Midwifery Council  EWHC 2979, namely that the appeal is limited to a review of the decision of the lower court unless it would be in the interests of justice for there to be re-hearing and the appeal court will not usually hear any oral evidence. It will only allow an appeal where the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
Turner J then went on to set out the approach as endorsed by the Court of Appeal in Meadow v GMC  QB 462, namely that on an appeal from a determination by a statutory health care regulator:
i.) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect
ii.) The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides;
iii.) The questions of primary and secondary fact and the overall value judgement to be made by a tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.
In relation to appeals against sanction the learned Judge reminded himself that an appellant must establish not just that the order was ‘wrong’ but was ‘excessive and disproportionate’ (Ghosh v GMC  WLR 1915 or ‘outside the range of what could be regarded as reasonable’ (R(Devon) v GMC  EWHC 174).
The Court considered the NMC’s Indicative Sanctions Guidance to Panel, and reminded itself of the principles outlined in the case of Fleischmann  EWHC 87, namely that generally speaking a practitioner who has been convicted of a serious criminal offence should not be permitted to resume his practice until he has satisfactorily completed his sentence, in order that public confidence in the profession is to be maintained.
It was held that although this was a single instance of misconduct where any sanction short of suspension would be insufficient, the misconduct was not fundamentally incompatible with Mr Isaghehi continuing to be a registered nurse. Mr Isaghehi did not cause any injury and there was no evidence of a harmful deep-seated personality or attitudinal problems. Mr Isaghehi had worked as a nurse for some years before the offence without incident and there were a number of testimonials. He had not been involved in similar behaviour since the incident. The learned Judge disagreed with the Committee’s finding that there was no evidence of remediation; while he was on licence he attended all appointments made for him. It was said that the Registrant’s attitude towards his offending was one of ‘unsolicited and genuine contrition’. The Court was satisfied that Mr Isaghehi has insight into his behaviour and that there was no significant risk of repetition.
It was held that this was not a case where striking off was the only sanction sufficient to protect the public interest. Striking off was disproportionate, notwithstanding the breadth of the range of legitimate opinions on the issue.
The appeal was duly allowed and the striking off order replaced with a 12 month suspension order.
It is difficult to see how the judgement in this case fits squarely with the comments of Auld LJ in Meadow, namely that the overall value judgements to be made by a tribunal are akin to jury questions to which there may reasonably be different answers, thus necessitating a large degree of deference to the professional Panel. This is especially the case with regard to the findings about insight, bearing in mind the Committee had had the benefit of hearing directly from the Registrant himself. Arguably the Court here has replaced its own judgment for that of the Committee, rather than deferring to the specialist judgement of the professional Panel.
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