Acting to stop harm: the FCA and Appointed Representatives
High Court dismiss nurse’s appeal on the basis that any legal misdirection by the legal assessor was not of sufficient importance to invalidate the decision of the Panel.
Judgement date: 21 February 2014
The appellant nurse (N) appealed against a finding of the respondent Nursing and Midwifery Council’s (NMC) Conduct and Competence Committee (the Committee) that her fitness to practise was impaired and that she should be erased from the register.
N qualified in 2009 and had a previously unblemished record. In May 2010 her father passed away unexpectedly, since which time N’s mental health deteriorated and fluctuated. A Dr Ghosh had provided a psychiatric report outlining the difficulties she faced, the contents of which were not in dispute between the parties.
On 6 August 2011 N attempted suicide by overdose of quinine sulphate tablets she had bought online. On 7 November 2011, after returning from a period of sick leave, she had a performance management meeting with her line manager, during which she became distressed and upset. Following that meeting it was said that N stole Tramadol tablets from the ward, ingested an unknown quantity of these and was sick. On 18 November 2011 ward managers identified that quantities of medication were missing and the Police were called. On being searched three packets of Tramadol tablets were found in N’s pocket. N was arrested and interviewed. She admitted the theft of Amitriptyline and Tramadol from the ward but could not confirm the quantities or dates. She denied the theft of the three Tramadol packets in her pocket on the basis that these were intended for patients. N accepted a caution in respect of the unspecified quantities of Amitriptyline and Tramadol. N received a final written warning from the Trust at which she worked, was transferred to a different ward and the matter referred to the NMC. An interim conditions order was imposed and extended to cover the final hearing.
N faced a single charge that she had received a caution for theft by employee on 23 November 2011 and that her fitness to practise was impaired as a result. The allegation was admitted and N gave evidence at the impairment and sanction stage of the hearing.
It was argued on N’s behalf that;
i. In so far as the finding of fact was made that N’s fitness to practise was impaired by reason of the caution, the Committee found (wrongly in N’s view) that she took stolen Tramadol on multiple occasions and that her continued protestation that she had only done so on one occasion was dishonest. It was argued on N’s behalf that the Committee rejected N’s explanation without satisfactorily engaging with it, despite the gravity of a finding of dishonesty and failing to give adequate reasons for that decision.;
ii. The legal advice was erroneous, in that the Legal Assessor commended the application of the decision in Solicitors Regulatory Authority v Sharma  EWHC 2022, giving the Committee the erroneous impression that striking off would be appropriate in all cases of dishonesty absent exceptional circumstances. N argued that the present case was on all fours with the case of Hassan v General Optical Council  EWHC 1887, in which it was held that a ‘Sharma’ direction was inappropriate in the circumstances.
Dealing with the grounds in turn;
i. Having considered the case of Bhatt v General Medical Council  EWHC 2783 and Southall v General medical Council  EWCA Civ 407 regarding the general approach of the courts on appeal, it was held that this was the sort of straightforward case referred to by Leveson LJ in Southall in which it was sufficient for the Committee to simply set out the facts proved as this would demonstrate to both parties why they won or lost. There was expert evidence that showed that N had tested positive for drugs on multiple occasions. The Panel had clearly preferred this unchallenged evidence over N’s account. This ground of appeal failed;
ii. The Court held that in alleged misdirection cases two distinct questions must be addressed, namely ‘firstly, was there a material misdirection and, if so, secondly, was it of sufficient significance to the result to invalidate the decision’  (Fox v General Medical Council  1WLR 1017 and per Lord Guest in Sivarajah v General Medical Council  1 WLR 1112). The learned Judge did not accept N’s reliance on Hassan. Whilst it is persuasive and weight should be given to it, the Court was bound by Libman as a matter of authority. In Hassan, Legatt J had not answered the second stage question posed in Libman, namely was the misdirection of such sufficient significance to invalidate the decision. In addition this that, it was held that there were ‘several points of distinction between Hassan and this case which are highly relevant’ . These were;
a. the qualification to Sharma expressed in Parkinson v NMC  EWHC 1898, (a case which makes clear that professional integrity applies with equal important to health professionals as to legal professionals) which was not referred to the panel in Hassan was referred to the Committee in this case
b. the matters taken into account by the Committee were much more carefully and extensively set out in the Decision Letter in the present case than they were in Hassan.
c. Whereas the reasoning of the Panel in Hassan ran to four short paragraphs, in the present case the Committee’s reasons were much more extensive, running to four pages of detailed analysis.
It was held that ‘if reference to Sharma constituted a misdirection, and I am prepared to accept for present purposes that without explicit reference to Parkinson it might have, it was not material and it certainly cannot be demonstrated that it had such a significant effect on outcome as to invalidate the decision, even though this Committee recorded its acceptance of the advice of the legal adviser' .
The appeal failed.
This judgement clarifies the legal test when a challenge is made to legal advice provided in the course of professional discipline tribunals and casts some doubt of the Hassan case. It also would seem prudent for legal advisers (and indeed presenting officers) at healthcare regulatory tribunal hearings to refer to Parkinson as well as Sharma when advising on sanctions for dishonesty.
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