Royal Courts of Justice
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE WALKER
Between:
AKINYEMI OLUMIDE OKUNLOLA
Claimant
v
NURSING AND MIDWIFERY COUNCIL
Defendant
Computer-Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
Ms Trisan Hyatt (instructed by Greenland LLP) appeared on behalf of the Claimant
Miss Aja Hall (instructed by NMC) appeared on behalf of the Defendant
J U D G M E N T
MR JUSTICE WALKER:
A Introduction
This is an appeal against a striking-off order made by the Nursing and Midwifery Council ("the Council"). The appellant is Akinyemi Olumide Okunlola ("Mr Okunlola") who was registered by the Council as a mental health nurse. Complaints against Mr Okunlola and another registered nurse ("the co-registrant") led to a joint hearing of proceedings against them before a panel ("the Panel") of the Council's Conduct and Competence Committee ("the Committee"). In the proceedings against Mr Okunlola it was alleged that he acted dishonestly by:
providing false employment references in which he represented that any or all of three individuals either was or had been an employee of Oxleas NHS Foundation Trust.
requesting that employment references be made for a registrant by three individuals whom he knew would misrepresent the truth.
requesting that employment references be made for a registrant by two individuals whom he knew would misrepresent the truth.
falsely submitting an employment reference in the name of another individual.
In a decision dated 11 September 2014, the Committee concluded that Mr Okunlola's misconduct breached fundamental tenets of the Council's code. His dishonesty had occurred on several occasions and was sustained over a period of time. The Committee decided that Mr Okunlola's fitness to practise was currently impaired and that the only appropriate sanction was a striking-off order.
At the hearing before the Panel Mr Okunlola was represented by Mr Akinoshun and the Council was represented by Ms Janet Burgess. In this appeal until last Friday Mr Okunlola acted in person, relying upon grounds of appeal ("Mr Okunlola's grounds") and a skeleton argument ("Mr Okunlola's skeleton argument") which he had lodged with his notice of appeal. Mr Okunlola's grounds can be summarised as asserting that the Panel was wrong to find that his fitness to practise was currently impaired, that the sanction of striking-off was disproportionate and that there were serious procedural or other irregularities in the proceedings against him.
Very recently Mr Okunlola instructed Greenland Lawyers LLP and Ms Trisan Hyatt of counsel to act for him. I have been much assisted by a skeleton argument ("Ms Hyatt's skeleton argument") lodged by Ms Hyatt yesterday and by Ms Hyatt's oral submissions on behalf of Mr Okunlola this morning. I have also been much assisted by a skeleton argument prepared by Ms Aja Hall of counsel on behalf of the Council. In the event I have not needed to call upon Ms Hall. That is no disrespect to Ms Hyatt whose submissions have forcefully advanced everything that could properly be said on Mr Okunlola's behalf.
B The Statutory Framework
The Council is the statutory body responsible for the regulation of nurses and midwives in the United Kingdom. It is governed by the Nursing and Midwifery Order 2001 ("the 2001 Order"). Its duties include the maintenance of a register of all nurses and midwives entitled to practise in the United Kingdom.
The Council is required to establish and keep under review effective arrangements to protect the public from persons whose fitness to practise is impaired (Article 21(b) of the 2001 Order). The statutory provisions relating to fitness to practise are set out in Part V of the 2001 Order and the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 ("the 2004 Rules").
Article 22 of the 2001 Order sets out the type of allegations that can be said to impair a registrant's fitness to practise. The types of allegations include lack of competence and misconduct. Allegations take the form of alleging facts which are said to impair a registrant's fitness to practise.
C Legal Principles Governing the Appeal
It is common ground that the principles governing the appeal are similar to those set out in relation to the medical profession by Cranston J in Cheatle v GMC [2009] EWHC 645 at paragraphs 12 to 15. In summary:
The appeal is a rehearing. It is not confined to a point of law, but neither at the other end of the spectrum is it a hearing where the court hears the witnesses giving evidence again;
The court's function is not limited to review of the panel decision, and in relation to findings of fact, it is entitled to exercise its own judgment on whether the evidence supported such findings. However, it will not interfere with a decision unless persuaded that it was wrong;
In considering whether the decision of a fitness to practise panel is wrong, the focus must be calibrated to the matters under consideration. With professional disciplinary tribunals, issues of professional judgment may be at the heart of the case;
In relation to findings which reflect a professional judgment concerning standards of professional practice and conduct, the court will exercise distinctly secondary judgment, and give special respect to the judgment of the professional body as the specialist tribunal entrusted with the maintenance of the standards of the profession. The court will recognise that the first instance body will in many cases be at a significant advantage in assessing the credibility of witness evidence, including that of a registrant.
In relation to a sanction of striking-off, the court will consider whether the reasons given by the tribunal justify that sanction, again giving special respect to the judgment of the professional body.
D The Charges
The Committee's letter to Mr Okunlola dated 11 September 2014 ("the decision letter") set out the charges in a form which referred to others by using numbers or initials. Among them was the co-registrant, who was referred to in the decision letter as "Registrant A". Adopting that terminology and with the substitution of numbers and letters as indicated earlier, the charges were as follows:
Details of charge.
That you, whilst employed by the Oxleas NHS Foundation Trust ("the Trust") as a Band 6 Charge Nurse at the Bracton Centre between 6 November 2006 and 26 March 2013:
Provided false employment references for any or all of the individuals listed in Schedule B in that you represented that the individual was or had been an employee of the Trust;
Your actions in charge 1 above were dishonest in that you represented that the individual did or had worked for the Trust when you knew this not to be true.
On an unknown date, abused your position as a Band 6 Charge Nurse in that you requested employment references to be made on behalf of Ms 3 by:
Registrant A.
Mr 4.
Mr 5.
That your actions in charge 3 were dishonest, in that you asked for references from individuals that you knew would misrepresent the truth, namely that they knew Ms 3 personally and/or professionally;
On an unknown date, abused your position as a Band 6 Charge Nurse in that you requested employment references to be made on behalf of Ms 6 by:
Registrant A
Mr 4
That your actions in charge 5 were dishonest in that you asked for references from individuals that you knew would misrepresent the truth, namely that they knew Ms 6 personally and/or professionally;
On 19 September 2012, falsely submitted an employment reference on behalf of Ms 6 in the name of Mr 4;
Your actions in charge 7 above were dishonest in that you represented that it was Mr 4 who had provided the employment reference when you knew this to be incorrect;
And, in light of the above, your fitness to practise is impaired by reason of your misconduct.
Schedule B
10. Name of individual | 11. Date of reference | 12. Recipient of reference |
13. Ms 7 | 14. 15 January 2013 | 15. Reed Nurse Staff Bank, Imperial College Healthcare NHS Trust |
16. Ms 3 | 17. 19 September 2012 | 18. Reed Nurse Staff bank, Imperial College Healthcare NHS Trust |
19. Ms 6 | 20. 19 September 2012 | 21. Reed Nurse Staff bank, Imperial College Healthcare NHS Trust |
E Background
The Appellant was referred to the Council following allegations of false references being written by the Appellant. At the relevant time the Appellant was working for Oxleas NHS Trust. He was working as a Band 6 registered nurse on the secure mental health facility. Emails were found that indicated that Mr Okunlola and the co-registrant had been providing employment references. On 24 January 2013 an informal discussion was held between the clinical nurse manager and Mr Okunlola. A note of this discussion records Mr Okunlola as stating that he had signed a reference following it being given to him by the co-registrant.
On 25 January 2013 Oxleas NHS Trust were contacted by Imperial NHS Trust stating that the Appellant had supplied a reference on 15 January 2013 in support of Ms 7. The reference stated an untruth, namely that she had worked for Oxleas NHS Trust from 1 February 2008 to present (15 January 2013). Mr Okunlola had worked with Ms 7 but this was at Capio Nightingale Hospital from 2003 to 2006.
As a result of this information a second meeting was held on 31 January 2013. At the meeting Mr Okunlola stated that he did not remember providing any recent references for anyone. He was then asked directly about Ms 7 and stated that he received a request for a reference by email in December.
Following this meeting a formal investigation commenced with an interview taking place on 11 February 2013. Mr Okunlola was asked about providing references and the approach he took when asked to write one. His response was that that it depended on his mood as to whether he would write a reference.
Mr Okunlola was also asked about Ms Omolola Beckles. He started by stating that they had worked together at Capio Hospital. Next he said that she used to be married to his uncle. Then he said that she was an ex-girlfriend. Finally he admitted that she was his wife and had been since March 2003.
Mr Okunlola denied writing a reference for his wife but confirmed that he had asked three junior members of staff to provide a reference for her. None of the junior members of staff had ever worked with Ms Omolola Beckles. Thus none was in a position to speak of her professional capabilities. Once Mr Okunlola had received the references from two junior members of staff he forwarded them to an agency.
Mr Okunlola also admitted that he had requested the same two junior members of staff to write a reference on behalf of another individual, stating falsely that they had worked with her.
F The panel's Rulings
F1 Finding of misconduct
At the outset of the hearing before the Panel, Mr Akinoshun on behalf of Mr Okunlola conceded that Mr Okunlola had done the things alleged in the charges. Mr Akinoshun also conceded that the things that Mr Okunlola had done were serious and amounted to misconduct. After recording those concessions, the Panel said in paragraphs which I identify below as [M01] to [M06]:
[M01] The panel bore in mind that not all conduct that falls short of every breach of the NMC code will necessarily amount to misconduct. However, in this case, it finds that your actions taken individually and collectively were sufficiently serious as to amount to misconduct. You have admitted to dishonestly providing a number of false references, over a prolonged period of time. You deliberately wrote professional references for individuals, commenting on their clinical skills, despite not working with them at the Trust at the time the references were written and despite possessing no clinical knowledge regarding their current professional skills, qualifications or disciplinary records. In addition, you used your position as a Band 6 nurse to request junior nurses to provide employment references for individuals about whom they possessed no knowledge.
[M02] In the panel's view, your actions were calculated and deliberate and had the potential to place patients at risk of harm. Your references commented specifically on the clinical abilities of a number of individuals and, in turn, were relied upon by their future employers in order to assess their suitability to take up positions within the healthcare industry. Your references deliberately misled those employers to assume that you had assessed those individuals at the Trust and had the appropriate knowledge to comment on their ability to practice safely as a nurse or healthcare worker.
[M03] You have abused your position as a nurse and you have breached the trust placed upon you by your employer and colleagues as well as by the public. In the panel's view, your misconduct displays an overall lack of integrity and honesty which are the bedrock foundations required by a nurse.
[M04] The panel concluded that your conduct fell well below the standards expected of a registered nurse and that you have breached the preamble and a number of paragraphs as set out in the NMC code:
The people in your care must be able to trust you with their health and well-being. To justify that trust, you must:
be open and honest, act with integrity and uphold the reputation of your profession.
As a professional, you are personally accountable for actions and omissions in your practice, and must always be able to justify your decisions.
[M05] And paragraphs 57 and 61 which state:
57 You must not abuse your privileged position for your own ends.
61 You must uphold the reputation of your profession at all times.
[M06] Accordingly, the panel is satisfied that the facts found proved in this case are sufficiently serious as to amount to misconduct.
F2 Current Impairment
The 2001 Order specifically envisages that when considering fitness to practise regard may be had to impairment. Article 22 describes various reasons why it may be asserted that fitness to practise is impaired. They include misconduct. They also include, as a separate reason why fitness to practise may be impaired, "lack of competence."
As to current impairment, the decision letter said in paragraphs which I identify below as [CI01] to [CI14]:
[CI01] … the panel asked itself whether you had in the past put patients at risk of harm, brought the nursing profession into disrepute, breached one of the fundamental tenets of the nursing profession and/or acted dishonestly. After careful considering all of the information before it, the panel concluded that the answer to each limb was yes.
[CI02] You provided false employment references in respect of a number of individuals when you possessed no knowledge of their current clinical skills. You further represented that the individuals had worked at the Trust and that you had observed and assessed their practice. You abused your position as a registered nurse and breached the trust placed upon you by your colleagues, the Trust and the public. In addition, you used your superiority as a Band 6 nurse in order to request junior nurses to provide employment references for individuals about whom they possessed no knowledge.
[CI03] In the panel's view your repeated dishonesty was at the higher end of the spectrum of seriousness in that those references were relied upon by future employers who would have assumed that you had practical knowledge of the competencies of the professionals in question. You misled those employers and consequently put patients at risk of harm.
[CI04] The panel considered that honesty and integrity are vital components to the nursing profession. Patients, colleagues and employers must be able to trust their nurses. In acting dishonestly, you have seriously undermined public confidence in the nursing profession and you have breached the fundamental tenets of the NMC code.
[CI05] Accordingly, the panel concluded that your actions had the potential to place patients at risk of harm, brought the nursing profession into disrepute and breached fundamental tenets of the nursing profession.
[CI06] The panel then considered the issue of current impairment and specifically whether your fitness to practise is currently impaired by reason of your misconduct. In considering whether you would be liable in the future to put patients at risk of harm, bring the nursing profession into disrepute, to breach one of the fundamental tenets of the profession and/or to act dishonestly, the panel had careful regard to the issues of insight and remediation.
[CI07] With regard to the issue of insight, the panel noted your admissions in response to the charges. However, it further noted that these admissions were not forthcoming during the Trust's internal investigation into your conduct and it was not until the evidence was gathered and put to you, that you acknowledged the extent of your wrongdoing.
[CI08] The panel considered that in your evidence you attempted to minimize the seriousness of your misconduct by attempting to place responsibility for giving false references onto junior members of staff.
[CI09] The panel noted that you have not admitted current impairment of your fitness to practise. It found this surprising given the grave implications which your conduct has had on the public interest and particularly the reputation of the profession and the regulator. The panel determined that your insight is limited.
[CI10] With regard to the issue of remediation, the panel took into account that your actions were of a dishonest nature and are therefore less easily remediable than acts involving clinical failures.
[CI11] The panel noted that you are currently working as a registered nurse and it took into account that apart from these matters, you have had no previous disciplinary proceedings against you. It further took into account the bundle of documents presented to it during these proceedings which contained evidence of training that you have since undertaken as well as personal statements and reflective pieces.
[CI12] However, the panel considered your dishonesty was not and isolated incident. In any event, as the misconduct in your case relates solely to dishonesty, this is predominantly a public interest case. As such, a firm declaration of professional standards to promote public trust and confidence in the nursing profession is required.
[CI13] In the light of all the surrounding circumstances and in considering the guidance provided in the Fifth Shipman Report and in the case of CHRE v NMC and Grant, the panel concluded that to make a finding of no impairment in the current circumstances would seriously undermine the public's trust and confidence in the nursing profession, it would not mark the seriousness of your misconduct and the departure from the standards expected of a nurse nor would it protect the public from any further dishonesty. You have demonstrated a capacity to act dishonestly and you have abused your position of trust.
[CI14] Accordingly, the panel determined that your fitness to practise is currently impaired by reason of your misconduct.
F3 Sanction
In relation to sanction, the decision letter said, in paragraphs which I identify below as [S01] to [S17]:
[S01] The panel has exercised its own independent judgment in this case and has accepted the advice of the legal assessor. He advised the panel to consider the guidance provided in the case of Fish v GMC [2012] EWHC 1269 (Admin) and specifically the issue of motive. He reminded the panel that the NMC has not challenged your evidence that your motive for providing false references was to help others. He further referred the panel to the guidance provided in the cases of Parkinson v Nursing and Midwifery Council [2010] EWHC 1898 (Admin) and Rahman v SRA [2012] EWHC (Admin) and advised that erasure was not an inevitable consequence of dishonesty.
[S02] In reaching its decision on sanction, the panel carefully considered the aggravating and mitigating factors in this case.
[S03] The aggravating factors which the panel felt were relevant were:
Your misconduct was at the higher end of the spectrum of seriousness.
Your dishonesty was isolated. It involved three different health workers over a period of four months.
You abused your position as a senior member of staff.
During the Trust's internal investigation, you were not open and forthcoming until you were presented with all the evidence against you. In these proceedings you attempted to deflect the blame of your actions onto others.
Your insight into your misconduct was limited.
You did not recognise that your misconduct was such that the public interest would require a finding that your fitness to practise is currently impaired.
[S04] The mitigating factors which the panel felt were relevant were:
You have engaged with the NMC process.
You made full admissions to the charges at the start of these proceedings.
Apart from these matters, you have an unblemished nursing career.
You have provided the panel with testimonials which attest to your clinical competence.
You have demonstrated remorse and regret for your acts.
[S05] The panel first considered taking no action. You have admitted to acting dishonestly on repeated occasions in a matter relating to your employment as a nurse. The level of misconduct requires a sanction to mark the serious departure from the professional standards as set out in the NMC code and to maintain the reputation of the nurses profession. The panel concluded that to take no action in this case would be wholly inappropriate.
[S06] The panel next considered a caution order, and in so doing took into account paragraphs 63 and 65 of the ISG. Your misconduct was not at the lower end of the spectrum of seriousness in that it related to honesty, integrity and trustworthiness. Your motivation for acting dishonestly is not clear. Your explanation that you always knew the persons for whom you provided references does not give the panel any insight into your motives.
[S07] Given the level of dishonesty found, the fact that it occurred on repeated occasions and the fact that it was sustained over a period of time, the panel concluded that a caution order would not be sufficient to maintain the public's interest and confidence in the nursing profession and in the NMC as its regulator. It would also not adequately mark the seriousness of your misconduct and your departures from the NMC code and the standards expected of a registered nurse.
[S08] The panel then considered the imposition of a conditions of practice order. It reminded itself of the factors set out in the ISG which indicate that such an order may be appropriate. In this case there have been no clinical issues or identifiable areas of your practice in need of retraining. On the contrary, the evidence before it suggests that you are a competent nurse and that you are currently working without issue. However, you have been found to have acted dishonestly on several occasions over a period of four months.
[S09] Such dishonesty is not easily remediable and therefore the panel concluded that it could not formulate appropriate, workable, or measurable conditions which would adequately address the level of dishonesty found.
[S10] The panel went on to consider whether a suspension order would be an appropriate and proportionate sanction in this case. It referred to the none exhaustive list of factors set out in the ISG (paragraphs 69-73), which indicate that a suspension order may be appropriate.
[S11] The panel considered that your misconduct breached fundamental tenets of the NMC code. Honesty, integrity, and trustworthiness are the bedrock of a nurse's practice and the public must be able to trust a nurse. In addition, your dishonesty was not isolated in nature and instead occurred on several occasions and was sustained over a period of time.
[S12] Based on the information before it, the panel has concerns as to whether or not the public interest would be satisfied if it imposed a suspension order, particularly in the light of the level of dishonesty found and your limited insight. You have admitted to providing false employment references in respect of a number of individuals when you had no knowledge of their current clinical skills. You represented that the individuals had worked at the Trust and that you had observed and assessed their practice when you had not. You abused your position as a registered nurse and breached the trust placed upon you by your colleagues, the Trust and the public. In addition, you used your superiority as a Band 6 nurse in order to request junior nurses to provide employment references for individuals about whom they possessed no knowledge.
[S13] The panel asked itself whether a striking-off order is the only sanction which is appropriate in this case. The question of its consideration is whether the conduct is so serious as to warrant the imposition of the most severe sanction available to it or whether the public interest may be met by the imposition of a lesser sanction.
[S14] In the panel's view you have demonstrated an inability to act openly, honestly and with integrity, all of which are fundamental and essential components of nursing.
[S15] Your dishonesty has led the panel to conclude that your behaviour is fundamentally incompatible with remaining on the register. The need to protect the public and to maintain the public's trust and confidence in the profession and in the NMC as its regulator requires that you be removed from the register and therefore a striking-off order is the only appropriate sanction in this case.
[S16] The panel bore in mind that such an order may have adverse effects for you and a financial impact upon your family. However, it considered that your interests are outweighed by the wider public interest and the need to protect the public and uphold the proper standards expected of a nurse as well as ensuring the maintenance of public trust and confidence in the profession and in the NMC as a regulator.
[S17] The panel will direct the registrar to remove your name from the register.
G The Grounds of Appeal
Below I set out the broad heads of complaint which were asserted in the grounds of appeal and analyse the arguments that have been advanced in respect of each head.
G1 Current Impairment
At the forefront of Mr Okunlola's grounds and of Mr Okunlola's skeleton argument was a complaint about the Panel's finding that he was currently impaired. Ms Hyatt referred me to paragraph 6 of Mr Okunlola's skeleton argument. It was there noted that the Panel had evidence that Mr Okunlola's clinical practice had not been called into question. It was also said in paragraph 6 of Mr Okunlola's skeleton argument that after the matters constituting misconduct had occurred, Mr Okunlola had nevertheless continued working as a registered mental health nurse and there had been no subsequent complaint about his fitness to practise. Those complaints seem to me to miss the point. As indicated earlier, it is, of course, possible that a practitioner's fitness to practise may be impaired by lack of competence. That was not, however, what was alleged against Mr Okunlola. What was alleged against him was that his fitness to practise was impaired by reason of his misconduct. It was also asserted in Mr Okunlola's skeleton argument that he had been open during the course of the investigation. That is not an assertion which is borne out by the Panel's findings as indicated in section F2 above.
The matters upon which Ms Hyatt placed particular stress were complaints that the Panel had failed to focus on current and future risk. She drew attention to what the Panel had said in the paragraph that I have numbered [CI09] above.
This, submitted Ms Hyatt, was fundamentally flawed. Mr Okunlola had admitted misconduct. In the light of that admission and in the light of the remedial steps that he had taken and his genuine remorse, he was, submitted Ms Hyatt, entitled to say that his fitness to practise was not currently impaired at the time of the hearing before the Panel. In that regard, Ms Hyatt referred me to what was said by Sir Anthony Clarke MR when giving judgment in Meadow v GMC [2006] EWCA Civ 1390. In paragraph 32 of his judgment Sir Anthony Clarke MR said:
In short, the purpose of FTP proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FTP thus looks forward not back. However, in order to form a view as to the fitness of a person to practice today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past.
Ms Hyatt acknowledged that in this passage Sir Anthony contemplated that consideration of fitness to practise will have to take account of what the person concerned had done or failed to do in the past. She submitted, however, that in paragraph [CI09], the Panel had taken a more backward look than a forward one. All that Mr Okunlola could do after the event was, submitted Ms Hyatt, to be aware of what had been wrong and to take such steps as he could to remedy it. She noted that the Panel had evidence of all that he had done, including a reflective statement in which he set out details of courses that he had undertaken including a course on ethics. She submitted that paragraph [CI09] showed that the Panel gave little or no consideration of this evidence. She acknowledged that remediation was dealt with by the Panel in the paragraphs that I have numbered [CI09] to [CI11]. However, she said that this was dealt with by the Panel with brevity. Indeed she went so far as to submit that only lip service was paid to looking forward in the light of all that Mr Okunlola had done to remedy his misconduct.
I cannot accept these submissions. The admission of misconduct occurred only at the start of the hearing. The Panel had given reasons, which I have set out in section F2 above, for forming the view that this factor, along with attempts in evidence to place responsibility for giving false references on to junior members of staff, detracted from what had been said on Mr Okunlola's behalf as to his insight and as to whether he was currently impaired. It was in that context that the Panel made the remarks that were found in the paragraph which I have numbered identified as [CI09]. To my mind, the Panel was fully entitled to comment that it was surprising that Mr Okunlola should have said that there was no current impairment.
Mr Okunlola's misconduct was of a very serious nature. It had not merely involved lies and deceit. Nor had it merely involved putting patients at potential risk. It had also involved, as was admitted on behalf of Mr Okunlola at the hearing, abuse of his position as a Band 6 charge nurse in requesting that others should provide references which he knew would misrepresent the truth by asserting that they knew the individual who was the subject of the reference. This was properly described as "fundamental" dishonesty. It could not merely be brushed aside.
Ms Hyatt additionally submitted that because Mr Okunlola had now accepted that there was dishonesty, because he had been dismissed from his employment and because he had taken the steps which were described to the Panel in evidence, a finding of non-impairment could have been reached consistently with a recognition of the need to maintain the high standards of the profession. For the same reasons as those that I have set out in relation to the earlier submission under the heading of current impairment, I cannot accept that this is the case.
G2 Proportionality of sanction
In relation to proportionality of sanction, Ms Hyatt submitted first that the Panel had paid insufficient regard to what she described as "the principle of the non-punitive nature of the sanction". In that regard, reliance was placed on what was said by Sir Anthony Clarke in the passage from Meadow cited above. Ms Hyatt's criticism was that here, too, there had been a failure to have regard to what was said by Sir Anthony Clarke. I am not persuaded that any such criticism is appropriate in this context. There is nothing in the decision letter which leads me to think that the Panel was seeking to punish. Their focus throughout is on fitness to practise.
The second matter advanced under this head was an assertion that in all the circumstances of the case a different sanction was appropriate. Ms Hyatt submitted that the appellant's misconduct was easily remediable with a lesser sanction when coupled with the steps that Mr Okunlola had already taken. She began by asserting that there was no evidence of harmful deep-seated personality or attitudinal problems. On the contrary, his attitude towards his misconduct reflected genuine contrition. He had been described as being "open during the evidence." He had given evidence and had put before the Panel matters that he relied upon as showing his remorse and insight. It was on this basis that Ms Hyatt invited the court to disagree with the committee's finding that Mr Okunlola's insight into his misconduct was limited.
I am not persuaded that the matters referred to by Ms Hyatt could warrant a conclusion on the part of the court that the Panel was wrong to hold that Mr Okunlola's insight into his misconduct was limited. I have referred earlier in this judgment to the matters which the Panel relied upon in this regard. As to Mr Okunlola having been "open during the investigation," this appears to me to miss the important point made by the Panel that it was only at the hearing before them that there was an admission of misconduct. As to the lack of evidence about a harmful deep-seated personality or attitudinal problem, it seems to me that the Panel rightly did not identify such a problem, there having been no allegation that there was one. The allegation was that this very serious, indeed fundamental, dishonesty on the part of Mr Okunlola, impaired his ability to practice as a mental health nurse. As it seems to me, the conclusions that I have reached in relation to impairment necessarily carry with them very strong inferences that the appropriate sanction is a sanction of striking-off.
Ms Hyatt in her submissions acknowledged that the Panel made reference to the mitigating factors that were put before the Panel. In essence, the submission that she makes is that this court should find that those mitigating factors were so great as to conclude that striking-off was not called for. The matters recounted by the Panel in the passages that I have cited above, however, to my mind point very clearly to the contrary conclusion. Those observations apply, as it seems to me, to other ways in which Ms Hyatt put essentially the same point.
In her skeleton argument Ms Hyatt referred to the length of time that Mr Okunlola had worked as a nurse without a blot in his character and to his work as a nurse after the misconduct had come to light. She referred also to an undertaking which Mr Okunlola gave that he would not repeat the conduct in question. None of this to my mind is sufficient to show that relevant conclusions of the Panel were wrong. Indeed, as it seems to me, the Panel rightly indicated that the dishonesty was so fundamental that it was not easily remediable. I cannot accept Ms Hyatt's contention that I should find that it could have been remedied without difficulty.
Ms Hyatt also referred me to the decision of Mitting J in Parkinson v Nursing and Midwifery Council [2010] EWHC 1898 (Admin). In that case Mitting J recognised that while dishonesty of the present kind would normally call for striking-off, nonetheless there was a residual category where it would be disproportionate in all the circumstances. In asserting that Mr Okunlola's case fell within that category, Ms Hyatt emphasized that he accepted the seriousness of the dishonesty. She nonetheless sought to rely upon the fact that Mr Okunlola had some knowledge of two of the individuals for whom the dishonest references were given. I cannot for my part see how the fact that he had some knowledge of those individuals can in any way significantly diminish the fundamental nature of the dishonesty of what he did. The position was that at the hearing the Council did not specifically identify any particular patient who had been harmed by what Mr Okunlola had done. Their case was that there was the obvious potential for harm. It seems to me that that is plainly right and indeed was not disputed by Ms Hyatt on behalf of Mr Okunlola.
The next point made was that Mr Okunlola's conduct could be contrasted with other types of dishonesty, for example, covering up malpractice. Nothing of that kind had occurred. That is of course correct. The material upon which the Panel's decision was taken and the material that is relevant for the purposes of the appeal to this court is the misconduct which was alleged in the charges and which was admitted by Mr Okunlola to have occurred. It was submitted by Ms Hyatt that in the circumstances the potential for future dishonesty was nonexistent. That submission, however, seems to me to be inconsistent with what was said by the Panel in relation to insight.
A remaining submission on sanction was that the Panel had not taken an appropriate step by step consideration of the sanction. They had instead, it was submitted, glossed over the matter in the paragraph which I have identified as [S10] above. I cannot accept that submission. As it seems to me the Panel in paragraph [S10] referred to the specific factors identified in "Indicative Sanctions Guidance to Panels" issued by the Council and published for the assistance of panels. Paragraph 71 noted, in particular, that a sanction of suspension might be appropriate if the misconduct was not fundamentally incompatible with continuing to be a registered nurse. That and other aspects relative to the question were specifically examined by the Panel in the paragraphs which I have set out above. Taken as a whole, in the circumstances that I set out above, there is no such irregularity in the proceedings before the Panel as would warrant any interference by this court.
G3 General assertions of procedural irregularity
Mr Okunlola’s grounds made general assertions that there had been “serious procedural or other irregularities”. The complaints made in this regard, however, have all been dealt with in sections G1 and G2 above. For the reasons given in those sections these complaints have no merit.
G4 The public interest
The final submissions made by Ms Hyatt concerned the public interest. In that regard, Ms Hyatt drew together the points that she had made earlier and submitted that they demonstrated that Mr Okunlola was a good nurse and that a member of the public, informed of the remediation steps that he had taken, would be satisfied with a lesser sanction. It will be apparent what I have said earlier in this judgment that I cannot accept that submission.
H Conclusion
In those circumstances this appeal is dismissed.
MISS HALL: My Lord I am grateful. I have handed a note to the clerk of the court and putting in that if you would like a copy of the determination in a word document, I can get that emailed over to your clerk as soon as I return to the office if that would assist in the writing the judgment.
MR JUSTICE WALKER: That will be very helpful. Thank you.
MISS HALL: I will ensure that is done. The final matter to raise is of course the matter of costs. I have served a cost schedule on my learned friend yesterday and one was served on the court. May I check that you have a copy of that document?
MR JUSTICE WALKER: I have it electronically.
MISS HALL: If not I do have a spare copy. You will see the total figure of costs claimed in the matter on behalf of the respondent is £3,655. My Lord working for Nursing and Midwifery Council, I am in-house counsel and therefore do not separate it out into solicitors and counsel. It is all done together. I have not included any hours of the supplementary skeleton argument that was served yesterday nor the reading of the further authorities again being placed before me yesterday and this morning. So where it says "work done on documents 10 hours," that does not include that further work yesterday. I do not intend to add any further hours to that but the point that I wish to make from that, of course, is it is in my submission that the costs incurred by the Nursing and Midwifery Council are very reasonable in this matter.
MR JUSTICE WALKER: Let us see what objection, if any, is taken to them.
MIS HYATT: My Lord, I do not object in principle. The appellant is aware that costs follow the event in this appeal. There are just a couple of points on the amount of costs which may seem churlish given that they are modest, but we are in the post Jackson days and we are entitled to take points about the reasonableness or proportionality of what is detailed in the schedule of costs. That being said, the only challenge I have is in relation to the preparation time of 10 hours and then the additional -- when it is considered in addition to 5 hours of skeleton drafting, I would invite you to award 5 hours in total for the preparation time. In essence the documents for the bundle. I would respectful submit is needed to have been placed in a bundle. They were in existence, so I would ask for the time to be reduced.
The second point is that I cannot assert anything further than the appellant bringing this case was a means of clinging on to a profession that he is good at and that supports his family. Today's appeal was funded by member of his church. He has a letter to that effect. If my Lord would like me to hand that up. I have that here.
MR JUSTICE WALKER: Yes.
MS HYATT: He is currently employed earning £1,250 net which is quite low with regard to his outgoing of mortgages and child care and transport but outside of that, in terms of principle, there is nothing that can be said to stand against in paying costs but my Lord if you could consider reducing them on the basis of my earlier submissions. Of course I do not object to attendance of my learned friend's costs today but I would ask my Lord to reduce it to the sum of £2,500 and allow 56 days for payment. Unless I can assist you further, those are my submissions.
MR JUSTICE WALKER: Miss Hall, it does appear there will be some degree of reduction in cases of this kind. I do not accept it should be taxed down anything like as steeply as is said against you, but I consider that the appropriate sum would be costs in the amount £3,200.
MISS HALL: My Lord no further submissions to make on that point.
MR JUSTICE WALKER: Thank you. As to the request for 56 days, could you take instructions on whether that is opposed.
MISS HALL: My Lord I need not take instructions. No that will not be opposed. If that is the time frame that is workable for the appellant, then I would not object that number of days at all.
MR JUSTICE WALKER: Very well. I will hand back the letter that has been handed in. What I will do is I will hold on to the papers until we have received the electronic version of the decision letter and my clerk is then being able to email our transcriber with the passages that are to go in.