When is the right time to question a medical decision?
Miguel Junior Gabarda v Nursing and Midwifery Council  EWHC 4039 (Admin)
Mr Gabarda is from the Philippines and he came to the United Kingdom (UK) in 2003 to work. In 2012, Mr Gabarda worked as a registered nurse in two nursing homes in Wales called Merton Place and Bryn Marl. These homes cared for elderly and vulnerable service users.
Between March and August 2012 at both of the homes, Mr Gabarda was subjected to disciplinary charges following which he resigned from Merton Place on 5 July 2012, while under investigation, and was dismissed from Bryn Marl on 6 August 2012. The main aspects of the allegations were as follows:
‘1) six instances of engaging in unacceptable sexually motivated conversation and behaviour at Merton Place;
2) one charge of failing to maintain the dignity of a patient at Merton Place;
3) one charge (divided into three separate sub-allegations) of unacceptable unhygienic practice while working at Merton Place;
4) two instances of engaging in unacceptable sexually motivated conversation and behaviour while working at Bryn Marl.’
Impairment and Sanction:
The Conduct and Competence Committee (the Committee) of the Nursing and Midwifery Council (NMC) heard the matter over 8 days between September 2014 to February 2015 and provided the written decision on 10 February 2014. Mr Gabarda attended the proceedings and gave evidence. Two relatives of a patient gave evidence for the NMC as did two of Mr Gabarda’s colleagues.
Eight charges were found proved, with one of them being only part proved, alongside two other charges found not proved. It was also found that those parts of the charges found proved were sexually motivated with the exception of the charge relating to poor hygiene, which was also found proved. The Committee determined that Mr Gabarda’s fitness to practise was impaired by reason of his misconduct and made an order striking him off the register.
In his ground for appeal, Mr Gabarda asserted that whilst the Committee and not the appeal court was the primary fact-finding tribunal, the correct weighting was not applied to the evidence by the Committee.
The High Court considered the Committee’s findings on the facts and ultimately agreed with them on the basis that it was for them to consider the credibility of witness evidence. The High Court stated that it is possible to accept ‘the thrust of a witness’ evidence despite inconsistencies on some points, or on account of such inconsistencies, to accept parts but not other parts of a witness’ evidence’.
The High Court then went on to consider the Committee’s decision on impairment. Mr Justice Kerr outlined as follows:
‘First, they considered whether Mr Gabarda had put patients at unwarranted risk of harm, whether physical, psychological or emotional; and concluded that in the case of Patient A he had done so. Secondly, they considered whether his conduct had brought the profession into disrepute and whether he had failed to maintain a high standard of professionalism and had undermined public confidence in the nursing profession. They were satisfied that he had done so. Thirdly, they looked at the risk of repetition and evidence of insight and remediation.’
Mr Justice Kerr noted that the Committee did not believe that Mr Gabarda had demonstrated any genuine insight and did not appreciate the seriousness of his actions, and as such, there remained a risk of repetition. In light of this, he agreed with the Committee’s finding of current impairment. Mr Justice Kerr outlined that the Committee’s ‘findings, reasoning and conclusion…seem to me to have been fair, balanced and unimpeachable.’
Finally, the appropriateness of the sanction to strike Mr Garbarda off the register was considered. Mr Gabarda argued that the decision on sanction was disproportionate and excessive, and a breach of his rights under Article 8 of the European Convention, his right to a private life. The Committee had set out Mr Gabarda’s mitigating features such as his personal and financial circumstances, but this was set against the aggravating features which included multiple professional breaches of sexual boundaries and of his position of trust accompanied with a failure to truly demonstrate insight and remorse.
Mr Gabarda’s counsel submitted that a proper balancing exercise had not been carried out in weighing the mitigating factors. It was submitted that alongside the absence of on-going concerns about his employment practices and sexual conduct in the past, Mr Gabarda would suffer a great deal of financial hardship at the age of 54 upon being struck off the register. It was also stated that in this situation, he would not be able to send money to his mother in the Philippines and it would be extremely difficult for him to obtain restoration following the mandatory 5 year strike off period elapsing considering his age. On these points, Mr Justice Kerr concluded that ‘I do not, after careful reflection, find myself able to accept that the offences properly found proved, were not serious enough to enable a reasonable committee to impose the sanction of striking off, harsh though it may seem to Mr Gabarda.’
Mr Justice Kerr stated that the offences were sufficiently serious that only strike off would be proportionate and any other sanction would be insufficient. With regard to the balancing exercise conducted by the Committee with the consideration of the personal mitigation, it was accepted that it was not enough for the Committee to just state that they had taken relevant matters into account unless it was evidenced that they had. Upon perusing the decision letter of the Committee on this point, Mr Justice Kerr deemed the personal mitigation to have been dealt with briefly. An argument advanced by the NMC was that it could be the case that personal mitigation ‘carried little weight in a case where preservation of public confidence in the integrity of the profession is paramount.’ On this point, Mr Justice Kerr emphasised that ‘there is a danger in that approach. The weight to be accorded to matters deployed as personal mitigation is always fact sensitive and you do not know the amount of weight that those factors deserve until you have carried out the balancing exercise.’
Despite this concern, the High Court found that the balancing exercise had been properly carried out by the Committee on the specific facts of Mr Garbarda’s case, and that the relevant matters had not been ignored. The Committee had concluded that the public interest outweighed Mr Gabarda’s own interests in relation to the potential financial hardship he could suffer upon being struck off the register. The High Court found that in its entirety, the Committee’s decision was not wrong and the appeal was dismissed.
Key learning points:
This decision highlights that multiple breaches of the fundamental tenets of the profession and specifically relating to sexual misconduct within a position of trust can warrant a finding of impairment and the sanction of strike off. Where personal mitigation is advanced by a Registrant, the High Court emphasised the Committee’s duty to consider the mitigation in full in order to fairly conduct a balancing exercise. In this way, the Committee can assure itself that the sanction eventually imposed is proportionate to the misconduct found proven, taking into account the mitigating and/or aggravating factors in the case. If the Committee has performed this balancing exercise in an appropriate manner, it can be considered a proportionate response for the Committee to find that the public interest outweighs the personal interest of the Registrant in question.
This blog was written by Nutan Fatania, Legal Assistant at Kingsley Napley.
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