Doherty v The Nursing and Midwifery Council

The essential background to this appeal can be summarised as follows:

The Appellant is a nurse. She was first registered with the Nursing and Midwifery Council (“the Council”) in 1992.

Nurses are required to renew their registration every three years, at which point they must satisfy the Registrar that they continue to meet the prescribed requirements to be entitled to practise as a nurse. Among those requirements is that they are of good character.

On 27 February 2013 the Appellant was convicted of a drink-driving offence (her second in five years). She was due to have to renew her registration in the autumn. When she applied to do so she disclosed the offence. The Registrar decided that because of her conviction she did not satisfy the good character requirements and refused to renew her registration.

The Appellant appealed to a Registration Appeal Panel, which upheld the decision of the Registrar. She pursued a further appeal to the County Court. By a judgment handed down on 19 June 2015 HHJ Freedman dismissed her appeal. She now appeals to this Court.

The Appellant’s case on the appeal is two-fold. First, she says that the Registration Appeal Panel took the wrong approach. It should have applied the same standard as if her conviction had come before a “fitness to practise” panel as a disciplinary matter (Footnote: ¹), and it should only have refused renewal if such a panel would have decided that she should be struck off. Secondly, she says that in any event, whatever approach was or should have been taken, her conviction did not justify refusing to renew her registration.

The Appellant has been represented before us by Mr Tom Kark QC, leading Mr Justin Meiland. Mr Meiland appeared for the Appellant both before the Panel and in the County Court. The Council has been represented by Ms Fenella Morris QC leading Ms Alexis Hearnden, neither of whom appeared below.

I will consider separately the two issues identified in paragraph 2 above, but I should begin by setting out the legislative provisions governing, on the one hand, registration and renewal, and, on the other, disciplinary striking-off, together with the guidance issued by the Council about the operation of those provisions.

When this judgment was in preparation it became clear that the versions of the relevant legislation in the bundle were not those in force at the material time. The parties were asked to provide the correct versions and also to deal in further written submissions with some questions raised by the Court arising out of the terms of the legislation.

The legislative framework is contained in three instruments, the Nursing and Midwifery Order of Council 2001 (“the 2001 Order”); the Nursing and Midwifery Council (Education, Registration and Registration Appeals) Rules Order of Council 2004 (“the Registration Rules”); and the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (“the Fitness to Practise Rules”). I will deal separately with how they provide for initial registration and renewal and for the procedures governing fitness to practise. I will quote from the legislation as it was at the material time. It has since changed in various respects, though the parties are agreed that the differences do not affect the issues before us.

Article 5 (1) of the 2001 Order – which falls under Part III (“Registration”) – requires the Council to maintain a register of qualified nurses and midwives. Article 5 (2) reads as follows:

The Council has prescribed requirements in accordance with article 5 (2) which are embodied in rules 5 and 6 of the Registration Rules. Rule 5 (1) (a) requires an applicant to include a declaration of good health and good character and (by reference to Schedule 3) details of any criminal convictions. Rule 6 requires the lodging of a supporting declaration of good health and good character from an independent third party. Rule 6 (6) requires the Registrar, for the purpose of satisfying herself as to the applicant’s good character, to have regard, inter alia, to the applicant’s declaration, the supporting declaration and any criminal convictions.

Article 9 (1) of the 2001 Order requires a person seeking admission to the register to apply to the Council and provides that if she satisfies the conditions mentioned in paragraph (2) she shall be entitled to be registered. Those conditions are:

The condition with which we are concerned in the present case is (b). What it means is that the Registrar must be satisfied (in accordance with the prescribed requirements) that the applicant is in good health and of good character: although the reference is to article 5 (2) generally, the language of “requirements” and “capable of” make it clear that it is aimed specifically at element (b). The matters about which the Registrar has to be satisfied necessarily involve an exercise of judgement. In practice, what they require the Registrar to decide is whether the applicant’s health and character are sufficiently good for them to be capable of safe and effective practice; and that is in fact recognised in the terms of the Council’s guidance which I set out at para. 21 below – see the final sentence of paragraph 1 as there quoted. It is convenient to note here, by way of anticipation, that Mr Kark accepted that a conviction for drink-driving is in principle capable of demonstrating bad character such as to prevent the Registrar being satisfied that an applicant is capable of safe and effective practice, though of course he says that that was not so in the present case.

Paragraphs (4)-(5A) of article 9 require that the Registrar decide the application within three months of (broadly) the date of application. If no such decision is reached within that period the applicant can appeal – article 9 (6).

Article 10 (1) provides that where a nurse wishes to renew her registration “at the end of a prescribed period” she should apply to the Registrar “in accordance with rules made by the Council”. The prescribed period is three years: see rule 10 of the Registration Rules, where it is referred to as the “registration period”. Paragraph (5) applies paragraphs (4)-(6) of article 9: in other words, the Registrar has to make a decision within the same time-scale as in the case of a first application for registration.

Rule 11 of the Registration Rules requires that a nurse be sent a renewal application form before the end of the registration period and a notice warning her that unless she submits the completed form, with the relevant fee, prior to a date specified in the notice her registration will lapse.

Rule 13 (1) of the Registration Rules provides that the Registrar must have received the materials required under rule 11 by the specified date. Those include “a declaration by the applicant, with which the Registrar is satisfied, as to her good health and good character [emphasis supplied]”. Paragraph (2) provides that:

Article 10 (2) provides that the Registrar shall grant such an application if the applicant satisfies conditions (a)-(c). Condition (a) is that she “meets the conditions set out in article 9 (2) (b) and (c)” – i.e. (so far as relevant for our purposes) that she satisfies the Registrar that she remains in good health and of good character. Conditions (b) and (c) concern requirements for continuing professional development and (where the registrant has not been in continuous practice) for additional education, training and experience.

Article 10 (3) provides that if the applicant does not comply with conditions (b) and (c) the Registrar may give her extra time to do so but that if she still has not done so within the specified time her registration will lapse. Rule 14 (5) allows the Registrar to extend the period by a maximum period of three months in order to allow the requirements of rule 13 to be complied with.

Article 12 is headed “Lapse of Registration”. Paragraph (1) empowers the Council to make rules “providing for the procedure by which and the circumstances in which a registrant’s name may be removed from the register on his own application or after the expiry of a specified period”. Paragraph (2) reads:

Rule 14, also headed “Lapse of Registration”, is the rule made under article 12 (1). Paragraphs (1) and (2) deal with applications by a registrant to have her name removed from the register. Paragraph (3) deals with cases where registration has lapsed under article 10 (3) (see para. 16 above). Paragraph (4) reads:

By article 37 (1) of the 2001 Order an appeal lies against a refusal by the Registrar of an application for registration or renewal. The appeal is in form to the Council but normally it is heard by an appeal panel in accordance with rule 25 of the Registration Rules: such a panel is generally referred to as “Registration Appeal Panel”, though that actual term is not used in the Rules. By article 37 (10) a further appeal lies to (in England and Wales) the County Court.

There was at the time of the appeals in the present case no guidance published by the Council specifically directed to how the Registrar or a Registration Appeal Panel should approach the question whether an applicant for registration (or renewal) is “capable of safe and effective practice”, or more particularly about the requirements of good health and good character. However, it did in November 2010 publish a document addressed to “approved education institutions” (“AEIs”) – that is, institutions undertaking the training of nurses and midwives – in order to “help [them] to ensure consistency in applying [the Council’s] requirements for good health and good character”. It is clear from the particular provisions of the document that those requirements would fall to be applied on admission to the AEI and/or to a particular course or programme. However, the requirements themselves must be the same as in the context of registration, and the guidance would thus appear to be relevant outside the specifically educational context. I will refer to it as “the 2010 Guidance”.

A section of the 2010 Guidance headed “Good Character and Good Health” begins at page 8. Paragraph 1 itself, headed “Good Character”, reads:

Since the decision with which we are concerned the Council has, in October 2015, issued guidance addressed specifically to the Registrar and to Registration Appeal Panels considering the requirements of article 9 (2) as regards good health and good character. I refer to this as “the 2015 Guidance”. Paragraphs 20-29 contain detailed “guidance on assessing character for decision-makers”, focusing very largely on criminal conduct and convictions. It is unnecessary to clog up this judgment by reproducing them here. For present purposes the only point that I need to make is that the Guidance makes it explicit that the “good character” criterion is not concerned only with the degree to which the conduct in question creates or evidences a direct risk to patients or service users: it is concerned also with the Council’s “supporting objectives” of maintaining public confidence in the nursing profession and maintaining proper professional standards and conduct. This is apparent from paragraphs 20.2-20.3 and the rubric at the start of the following section, which read:

Part V of the 2001 Order deals with the procedures applying when the fitness to practise of nurses on the register (referred to as “registrants”) is called in question. I need not attempt any comprehensive summary of the fitness to practise procedures for nurses. For our purposes the following points suffice.

The general functions of the Council in this regard are prescribed by article 21 of the Order as follows:

By article 22 (1) (a), the relevant procedures are engaged by the making of an allegation that the fitness to practise of a registrant

By article 31, where an allegation is made under article 22 an interim order can be made suspending the nurse’s right to practise or imposing conditions where the relevant committee is satisfied that that is necessary for the protection of the public or is otherwise in the public interest or is in the interests of the nurse herself. By article 22 (8) a person who is the subject of an interim suspension order is “treated as not being registered”.

How an allegation under article 22 is handled and resolved is governed by the Fitness to Practise Rules. For present purposes all that I need note is that if a case to answer is shown it will be considered either by the Council’s Health Committee or by its Conduct and Competence Committee. By rule 24 (12) the Committee will be required to make a finding as to whether the registrant’s fitness to practise is impaired. If such a finding is made it will have to proceed to consider what (if any) sanction to impose (rule 24 (13)). It may recommend mediation or decide that it is not appropriate to take further action (article 29 (4)); but otherwise it must impose one of four sanctions specified, in descending order of seriousness, in article 29 (5). It may:

By article 33 (2) a nurse who is struck off may not apply for restoration to the register for a period of five years.

At the risk of spelling out the obvious, it will be seen from the foregoing that the key concept under Part V of the 2001 Order and under the Fitness to Practise Rules is whether a nurse’s “fitness to practise” is “impaired”, whether that is the result of incompetence, misconduct or ill-health.

The Council has issued guidance – the “Indicative Sanctions Guidance” – for the Health Committee and the Conduct and Competence Committee when they are considering what sanction to impose following a finding that a nurse’s fitness to practise has been impaired. Paragraphs 57-77 review the available sanctions. For present purposes we are primarily concerned with paragraphs 74-77, which deal with striking-off, but I should set out paragraph 70, which is part of the section dealing with suspension, since there is a later cross-reference to it. It reads:

As for striking-off, paragraph 74 sets out three “key considerations”, as follows:

Paragraph 75 begins:

Paragraph 76 notes that:

I should mention one other point, which does not appear in the Guidance to which I have so far referred but in “the Code”, which prescribes standards of conduct for nurses and midwives generally. Paragraph 23.2 requires a nurse to notify the Council as soon as possible about any criminal charge or conviction.

As already trailed, Mr Kark’s principal case on this appeal is that the Registration Appeal Panel should have applied the same criteria to the question whether the Appellant’s conviction meant that she failed to satisfy the requirement of good character as a panel of the Conduct and Competence Committee would have applied to the question whether it meant that her fitness to practise was so impaired that she should be struck off; but that the Panel in fact applied less stringent criteria. I will consider first the question of principle as to which approach ought to be adopted.

Mr Kark’s essential proposition is that where a nurse has been guilty of criminal conduct the fundamental question is necessarily the same whether it arises in the context of an application to renew registration or in the context of disciplinary proceedings – namely, is the conduct in question such that she should no longer appear on the register ? Since the fundamental question is the same, it followed that the same approach ought to be taken in either context.

Mr Kark reinforced that basic submission by pointing out that in the case of a nurse applying for renewal of an existing registration it will be largely a matter of chance by which route the question comes up for decision. Although the normal route will be by way of an allegation which triggers the fitness to practise procedures, there will inevitably be some cases where the conviction occurs so close to the expiry date of the nurse’s registration that the Council will first become aware of it when it is declared – as it would have to be – in the renewal application, and its consequences will, at least on the procedure currently adopted, fall to be considered in that context rather than in disciplinary proceedings. It would be arbitrary and unfair if the happenstance of when the conviction occurred led to the application of any different standard or approach.

Mr Kark acknowledged that there is a complication in the facts of the present case. The Appellant’s conviction occurred some months before the expiry of her term but she failed to notify the Council at the time. She had asked her husband, who was a Royal College of Nursing “steward”, to check when she should disclose the conviction. His account was that he had telephoned the Council and been told by someone there that if it was “near the end of the [registration] cycle” disclosure could be made when the renewal papers were received. It may be debatable whether her failure to follow the Code was in those circumstances venial, but Mr Kark submitted that that did not in any event affect the question of principle, since on any view there would be cases, albeit no doubt a minority, where the interval between conviction and renewal date is genuinely too short for the disciplinary procedures to be engaged.

It follows, Mr Kark submitted, that in those cases where the consequences of a criminal conviction fall to be considered in the context of a registration application – and a fortiori a renewal application – the Registrar, or Registration Appeal Panel, should follow the terms of the Indicative Sanctions Guidance. That means that it should follow the graduated approach there indicated (see para. 31 above) and should only refuse registration or renewal where it considers that the public cannot be protected by any lesser sanction (see paragraph 74.1 of the Guidance) and where the conduct in question is “fundamentally incompatible with being a registered professional” (paragraph 75).

Mr Kark referred to two authorities which he said supported that approach – Council for the Regulation of Health Care Professionals v General Dental Counciland Fleischmann [2005] EWHC 87 (Admin) (to which I will refer as “Fleischmann”) and Jideofo v The Law Society [2007] EW Misc 3. I take them in turn.

In Fleischmann, a dentist was convicted of possession of pornographic images of children. The Professional Conduct Committee of the General Dental Council decided that he should be suspended from the register for twelve months. The Council appealed to the High Court on the basis that the sanction was unduly lenient. Newman J allowed the appeal and held that erasure from the register (the equivalent of striking-off in the case of a nurse) was the only appropriate sanction. The nature of the offence was such that there was no real risk to patients, and the essential justification for disciplinary action was the injury which his conduct would cause to the reputation of the profession. In that context reliance was placed on the fact that, although there was no explicit reference to “bad character” in the context of the provisions governing disciplinary action, on an application for registration a dentist was required to satisfy the registrar that he was of good character. Newman J accepted that that was an indication of the proper approach to the disciplinary power. At para. 55 of his judgment he acknowledged that the provisions relating to discipline were different from those relating to registration, particularly inasmuch as erasure was not automatic and there was a “graduated approach to the penalty … designed to secure proportionality”. He continued:

In Jideofo Sir Anthony Clarke MR, in the context of the powers then enjoyed by the Master of the Rolls as regards the disciplining of solicitors, was called on to decide as a matter of principle what was “the appropriate test for determining an individual's character and suitability for admission as a student member of the Law Society and then as a solicitor”: see para. 1 of his judgment. At para. 8 he observed that:

Mr Kark submitted that although neither of those authorities was binding on us both clearly supported his basic case.

Those submissions have some force. There will be many cases where the fact that a nurse had a particular criminal conviction would justify both the conclusion, if she was applying for registration (or renewal), that she was not capable of safe and effective practice and the conclusion, if she was already on the register, that her fitness to practise had been so seriously impaired that she should be struck off. In such a case the essential question would indeed, as Mr Kark submitted, be the same, notwithstanding the difference in the statutory language – i.e. ought this person be on the register ? – and would depend on the same considerations.

However, I do not believe that the fact that the relevant questions, and answers, will in the more serious cases be the same justifies disregarding the distinction between a registration decision and a disciplinary decision. The “subtly different considerations” recognised by both Newman J in Fleischmann and Sir Anthony Clarke in Jideofo are real. As Ms Morris pointed out, the essential difference between the two situations is that whereas in the disciplinary context the panel has available to it a range of sanctions – ranging from striking-off, via suspension and the imposition of conditions to a caution – the decision on a registration application (including an application to renew) is binary. An application for registration (or renewal) must either be admitted or refused: there is no such thing as suspended or conditional admission. This gives rise to a problem in a case where the conviction would not, if considered under the fitness to practise procedures, justify striking-off but where it would, say, justify suspension or the imposition of conditions. If Mr Kark’s submission as summarised at para. 39 above were right, it would mean that in a “half-way” case of this kind the Registrar would be obliged to admit the applicant to the register, with immediate effect and unconditionally. I do not regard that result as acceptable. It would mean that the applicant was in a better position than a nurse who had committed the same offence but whose case had been considered under the fitness to practise procedures; and, more importantly, the public would be deprived of the protection which suspension or the imposition of conditions would have been intended to achieve. It would also be hard to reconcile with the language of article 5 (2). If a nurse whose fitness to practise would, in disciplinary proceedings, be held to be so impaired as a result of a criminal conviction that her registration should be suspended it is hard to see how she can be said to be “capable of safe and effective practice”.

Mr Kark submitted that that unsatisfactory result could be avoided by some fancy footwork with the rules. He said that in a case where an applicant for registration or renewal disclosed a conviction it was open to the Registrar to refer the case to the Council under article 22 (6) for disciplinary investigation, which could if appropriate lead to the imposition of interim suspension or the imposition of interim conditions; and he submitted that if that was done no decision on the application would be required because the registration would be preserved by rule 14 (4) (b) (see para. 18 above). Ms Morris in her post-hearing submissions adopted a suggestion from the Court that this route would not work, because rule 14 only prevents a registration from lapsing “under this rule or rule … 13” and that in the kind of case under consideration neither of those rules applied. Mr Kark, by contrast, submitted that the case fell squarely under rule 13 (2), though he also acknowledged that “the legislative wording is not drafted as clearly as it could have been”.

We did not hear oral argument on this point: indeed one of the provisions on which both parties relied in their written submissions, rule 14 (5), was not in the version of the 2004 Rules supplied at the hearing. In those circumstances I am reluctant to reach a definitive conclusion on the technical availability of Mr Kark’s escape route. I am prepared to assume (in accordance, in fact, with my provisional understanding) that it is indeed available. But I do not believe that it is a route which the Council is obliged to take, or which it would normally be appropriate to take, in a case of the kind with which we are concerned. The legislation sets up two separate procedures, for registration (including renewal) and for fitness to practise, and I do not think that it is appropriate for the Council to go through elaborate manoeuvres in order to procure that a type of case that falls within the terms of one procedure should be decided under another. It is, I think, clear that the draftsman included rule 14 (4) in order to ensure that disciplinary proceedings which are already pending do not lapse simply as a result of the nurse’s registration period expiring before they can be concluded. It is most unlikely that it was contemplated that it would be used to divert good character issues routinely arising in a registration context into the fitness to practise channel. The two streams should be kept separate.

In the context of a first application for registration there is no possible unfairness in thus maintaining the distinction between the registration and fitness to practise regimes. It would be bizarre to admit a nurse to the register – which involves, as I have said, a judgment that she is capable of safe and efficient practice – with a view to her being immediately suspended or subjected to conditions on the basis that she was not fit to practise without safeguards.

That being so, I have difficulty seeing how, in principle, a different approach could be justified in the case of a nurse already on the register. As Mr Kark acknowledged, the good character criteria for first registration under article 9 and renewal under article 10 are identical. I do accept that this will sometimes give rise to the situation which Mr Kark says is unfair (see para. 37 above) – that is, where a nurse has her conviction dealt with under a binary regime rather than one where there is a wider range of options. To the extent that there is some unfairness, I believe that that has to be accepted as a consequence of the existence of the two distinct regimes. But I do not in fact believe that the unfairness is as great as Mr Kark suggested. That is for three reasons.

First, cases where a conviction which might otherwise have been dealt with under the fitness to practise regime fall instead to be dealt with on renewal will be unusual, at least if nurses comply with their obligation to report convictions promptly. Only in the unlucky case where the conviction occurs towards the end of the registration period may there be insufficient time for a disciplinary decision to have been taken before the end of the three-month period (or sometimes six) in which the Registrar has to make her decision (see para. 14 above). (I note for completeness that in the more serious cases an interim suspension order will generally be made, in which case renewal will not be appropriate because the nurse is treated as not being on the register – see para. 26 above; but I accept that those will not typically be the kind of case in which the different regimes would produce different outcomes.)

Secondly, what a nurse loses by having the consequences of her conviction assessed on a binary rather than a graduated basis will always be a matter of speculation and will not necessarily be of substantial benefit. What it amounts to is the chance that she might have been be able to maintain her registration but only subject either to suspension or to the imposition of conditions. (Footnote: ⁵) As to suspension, although there is no doubt a difference between being suspended and not being admitted to the register at all (whether initially or on a renewal application), the fundamental consequence in both cases that the nurse is unable to practise. As to the imposition of conditions, I accept that that is preferable to not being on the register at all, because the nurse may be able to continue to practise; but there will be no certainty in any particular case that that would have been the alternative.

Thirdly, a nurse who is refused registration on good character grounds can apply again at any time. If the conviction was one that would have led to her being struck off if she had been the subject of fitness to practise proceedings, she is in principle in a better position since a nurse who has been struck off cannot re-apply for five years – see para. 28 above. But even in the case where a lesser sanction would have been imposed, such as suspension, she could re-apply after a period and contend that she had in practice suffered an equivalent sanction.

For those reasons I would reject Mr Kark’s submission at para. 39 above. The Registrar or the Registration Appeal Panel should follow their own specified criteria. No doubt those criteria overlap with those in the Indicative Sanctions Guidance, but the difference in the options as regards the less serious cases means that the overlap cannot be total. And, that being so, cross-referring to the Indicative Sanctions Guidance is more likely to create confusion than illumination.

I should, at the risk of repetition, make it clear that my conclusion does not affect the reasoning or decision in either Fleischmann or Jideofo. The points made in those cases are entirely unexceptionable in the context of the particular questions being considered, but they cannot be read as governing the different question which we considering. In particular, while it is no doubt correct that if a conviction would warrant striking off it would also warrant a refusal to register, the reverse is not necessarily the case: for the reasons discussed above, there may be cases where a conviction may be sufficient to justify a refusal to register even if the same conviction might not justify striking off.

The conclusion which I have reached on this question is essentially the same as that of Judge Freedman. It implies no disrespect for his careful and thoughtful judgment that I have not found it necessary to refer to the details of his reasoning.

I have felt obliged to deal with the issue of principle as fully as I have since it is of general importance. But it is a curiosity of this case that on the face of it the Panel did in fact adopt the approach advocated by Mr Kark. As appears from the transcript, Mr Meiland submitted to it in terms that:

Mr Kark did not accept that analysis. He argued that, although the Panel purported to accept the advice of the legal assessor, when one looked at the detailed reasoning it could be seen that they had in fact departed from it. I do not agree, but since I have concluded that it was not obliged to follow it in the first place there is nothing to be gained by my pursuing the point further.

Mr Kark’s submission here is that on either approach the Panel’s decision to refuse registration was wrong. He acknowledged, as I have said (see para. 22 above), that in principle a drink-driving conviction was capable of constituting “bad character” sufficient to justify the conclusion that a nurse was not capable of safe and effective practice; also (since on his approach the standards were the same) that it might constitute conduct “fundamentally incompatible with being a registered professional” within the meaning of paragraph 75 of the Indicative Sanctions Guidance (see para. 32 above). But he said that the circumstances of the Appellant’s case, including some strong mitigating circumstances, were such that her conviction did not justify either conclusion.

I start with the circumstances of the Appellant’s conviction for drink-driving. They are helpfully summarised by Judge Freedman as follows:

As I have already said, this was not the Appellant’s first such conviction. Again, I can take the details of her earlier conviction (so far as they are known) from the judgment of Judge Freedman, at para. 9:

The Appellant and her husband gave evidence to the Panel and put in documentary evidence. The material which Mr Meiland relied on before the Panel by way of mitigation can be summarised as follows:

Against that background, I can set out the final section of the decision of the Panel, in which it gave its reasons for dismissing the appeal. This reads:

The hearing before the Judge was, as he noted, by way of re-hearing, but neither party asked him to consider any evidence beyond what was before the Panel – there was a transcript of the oral evidence – and he was not invited to depart from any of its primary findings of fact. At para. 55 of his judgment he described the issue as being “whether it can be said that the Registrar/panel came to a wrong conclusion in finding that the appellant’s character was such that she was not capable of effective and safe practice”. He then addressed in turn various specific grounds of appeal advanced by Mr Meiland. Those grounds are not relied on, at least as such, before us, and I need not therefore set out his reasoning, but I note the following points:

At para. 60 the Judge concluded:

Mr Kark’s essential submission before us was that the Panel’s reasons and conclusion paid insufficient regard to the mitigating circumstances to which I have referred, and that the Judge was wrong not so to find. He also submitted that the case showed none of the kinds of circumstances identified in the Indicative Standards Guidance as illustrating when a conviction was fundamentally incompatible with registration or where striking-off would be proportionate, such as dishonesty, harm to patients or abuse of trust.

I cannot accept that submission. This Court, like Judge Freedman, is only entitled to overturn the decision of the Panel if we are satisfied that it was wrong; and in making that judgement we must pay appropriate respect to the view of the specialist tribunal about the standards required in order to maintain public confidence in the profession (that being, as I have said, an important element in the assessment of good character): see, for example (there are many), the judgment of Laws LJ in Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46, [2007] 1 WLR 1460, at paras. 20 and 26 (pp. 1482 and 1484). We must also bear in mind the advantage the Panel had in hearing the Appellant’s evidence for itself.

Taking that approach, I, like Judge Freedman, can see nothing wrong in the Panel’s conclusion. In the passage which I have quoted it identified the circumstances which made this offence particularly serious. It was a second offence over a five-year period; the Appellant was three times over the limit; although she had injured no patients she had nevertheless had an accident in the hospital car-park; it did not credit her evidence that she did not realise that she was over the limit; and there was (in those circumstances) a risk of recurrence. It was on that basis fully entitled to find that she was not capable of safe and effective practice, and none of the mitigating circumstances were such as to undermine that conclusion.

I would dismiss this appeal.

I agree.

I also agree.