Moyo v Nursing and Midwifery Council

The Appellant, who is a registered nurse, appealed against a 12 month suspension order imposed by a Panel of the Conduct and Competence Committee (“the Panel”) of the Nursing and Midwifery Council (“NMC”) on 8 January 2015.

The Panel found that the Appellant’s fitness to practise was impaired by reason of her misconduct in dishonestly working shifts for an agency whilst on emergency/compassionate/sick leave from her principal NHS employer. The Appellant admitted both misconduct and impairment.

She appealed on the grounds that the sanction was excessive and disproportionate, and that the Panel decision was both wrong and procedurally unfair.

The NMC is the statutory body responsible for the regulation of nurses and midwives in the United Kingdom. The Appellant has a right of appeal to the High Court pursuant to Article 38 of the Nursing and Midwifery Order 2001.

The appeal is governed by CPR 52. PD52 provides that the appeal should be by way of rehearing. CPR Rule 52.11(3) provides that an appeal will be allowed where the decision was “wrong” or “unjust because of a serious procedural or other irregularity in the proceedings in the lower court”.

Appeals from professional regulatory bodies have three distinctive features. First, the appeal is from a panel with specialist expertise in the relevant profession. These panels are established by statute, indicating Parliament’s intention that the primary decision-making body in relation to fitness to practise in the professions would be a specialist panel, and the Courts would only have an appellate function. Second, the panels have power to impose sanctions, whose primary purpose is to maintain public confidence in the profession, rather than to punish. The expertise of a specialist panel will assist it in assessing the appropriate sanction in order to maintain public confidence in the standards of the particular profession. Third, Article 6 of the European Convention on Human Rights is likely to be engaged where the appellant’s right to practise his profession may be at stake (see Albert & Le Compte v Belgium (1983) 5 EHRR 533).

The approach to be taken by an appellate court to professional regulatory appeals has been considered in a series of appeals from the General Medical Council.

In Ghosh v General Medical Council [2001] UKPC 29, [2001] 1 WLR 1915. Lord Millet said at [31] – [34]:

“31.

Counsel's principal contentions were directed to support a submission that erasure was an excessive and inappropriate penalty, and that the Board should substitute a lesser penalty such as a further period of conditional registration. He sought to persuade their Lordships to adopt a less restrictive approach to their jurisdiction than may sometimes have been adopted in the past. With this in view he reminded their Lordships that proceedings against a registered practitioner for professional misconduct involve a determination of his or her civil rights and obligations and accordingly attract the protection of Article 6(1) of the European Convention on Human Rights. Such protection requires either that the decision-making body (in this case the Committee) constitute an independent and impartial tribunal or, if not, that its processes be subject to control by an appellate body with full jurisdiction to reverse its decision. These submissions were not disputed by the Council and their Lordships accept them.

32.

Counsel next submitted that the Committee was not an independent body, and that accordingly the Board must take an expansive jurisdiction when hearing appeals from the Committee if a breach of the Convention was to be avoided. Their Lordships do not find it necessary to consider whether the Committee as presently constituted fulfils the Convention requirements of independence and impartiality, because they are satisfied that their own jurisdiction is sufficient to remedy any deficiency there may be in these respects.

33.

Practitioners have a statutory right of appeal to the Board under section 40 of the Medical Act 1983, which does not limit or qualify the right of the appeal or the jurisdiction of Board in any respect. The Board's jurisdiction is appellate, not supervisory. The appeal is by way of a rehearing in which the Board is fully entitled to substitute its own decision for that of the Committee. The fact that the appeal is on paper and that witnesses are not recalled makes it incumbent upon the appellant to demonstrate that some error has occurred in the proceedings before the Committee or in its decision, but this is true of most appellate processes.

34.

It is true that the Board's powers of intervention may be circumscribed by the circumstances in which they are invoked, particularly in the case of appeals against sentence. But their Lordships wish to emphasise that their powers are not as limited as may be suggested by some of the observations which have been made in the past. In Evans v General Medical Council (unreported) Appeal No 40 of 1984 at p. 3 the Board said:

“The principles upon which this Board acts in reviewing sentences passed by the Professional Conduct Committee are well settled. It has been said time and again that a disciplinary committee are the best possible people for weighing the seriousness of professional misconduct, and that the Board will be very slow to interfere with the exercise of the discretion of such a committee. … The Committee are familiar with the whole gradation of seriousness of the cases of various types which come before them, and are peculiarly well qualified to say at what point on that gradation erasure becomes the appropriate sentence. This Board does not have that advantage nor can it have the same capacity for judging what measures are from time to time required for the purpose of maintaining professional standards.”

For these reasons the Board will accord an appropriate measure of respect to the judgment of the Committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the Committee's judgment more than is warranted by the circumstances. The Council conceded, and their Lordships accept, that it is open to them to consider all the matters raised by Dr Ghosh in her appeal; to decide whether the sanction of erasure was appropriate and necessary in the public interest or was excessive and disproportionate; and in the latter event either to substitute some other penalty or to remit the case to the Committee for reconsideration.”

In Meadow v General Medical Council [2007] QB 462, Auld L.J. said at [197]:

“On an appeal from a determination by the GMC, acting formerly and in this case through the FPP, or now under the new statutory regime, whatever label is given to the section 40 test, it is plain from the authorities that the court must have in mind and give such weight as is appropriate in the circumstances to the following factors. (i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect. (ii) The tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides. (iii) The questions of primary and secondary fact and the overall value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.”

In Raschid v General Medical Council [2007] 1 WLR 1460, which was an appeal against sanction, Laws L.J. said, after reviewing the authorities, at [19]:

“19.

….the fact that a principal purpose of the panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations in Ghosh v General Medical Council [2001] 1 WLR 1915, 1923, para 34:”

“the Board will afford an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances.”

20.

These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case.”

In Cheatle v General Medical Council [2009] EWHC 645 (Admin), Cranston J. said at [15]:

“In my view the approaches in Meadow and Raschid are readily reconcilable. The test on appeal is whether the decision of the Fitness to Practise Panel can be said to be wrong. That to my mind follows because this is an appeal by way of rehearing, not review. In any event grave issues are at stake and it is not sufficient for intervention to turn on the more confined grounds of public law review such as irrationality. However, 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. Raschid was an appeal on sanction and in my view professional judgment is especially important in that type of case. As to findings of fact, however, I cannot see any difference from the court's role in this as compared with other appellate contexts. As with any appellate body there will be reluctance to characterise findings of facts as wrong. That follows because findings of fact may turn on the credibility or reliability of a witness, an assessment of which may be derived from his or her demeanour and from the subtleties of expression which are only evident to someone at the hearing. Decisions on fitness to practise, such as assessing the seriousness of any misconduct, may turn on an exercise of professional judgment. In this regard respect must be accorded to a professional disciplinary tribunal like a Fitness to Practise Panel. However, the degree of deference will depend on the circumstances.”

Counsel also helpfully referred me to Bolton v Law Society [1994] 1 WLR 512; Gupta v General Medical Council [2002] 1 WLR 1691; R (Abrahaem) v General Medical Council [2004] EWHC 279 (Admin); R (Bevan) v General Medical Council [2005] EWHC 174 (Admin) and Isaghehi v Nursing and Midwifery Council [2014] EWHC 127 (Admin).

The Panel was required to give adequate reasons for its decision on sanction. As it is a lay panel, sitting with a legal assessor, it is not expected to give reasons to the same standard as a court. It will generally be sufficient for the reasons to demonstrate to the parties, and to an appellate tribunal, why they considered the sanction imposed to be appropriate, and why alternative sanctions were not appropriate. However, the Panel need not record every point made to it in evidence or by way of submissions, particularly since the parties and the appeal court always have the benefit of a full transcript of the proceedings in fitness to practise hearings: Professional Standards Authority for Health and Social Care v General Medical Council, and Uppal [2015] EWHC 1304, per Lang J. at [44].

From about December 2009, the Appellant was employed by the NHS Blood and Transfusion Service as a specialist nurse in organ donation. On 25 July 2013, following disciplinary proceedings, she was summarily dismissed for gross misconduct.

Following referral to the NMC, she was charged as follows:

“1.

On 3 February 2013 worked a nightshift between 19.30 and 08.00 on 4 February 2013 at Chase Farm Hospital, Intensive Care Unit and subsequently, on 4 February 2013 requested emergency leave from your NHS Blood and Transplant shift for 4 February 2013.

2.

Your actions in relation to Charge 1 above were dishonest in that you misrepresented in an email dated 4 February 2013 at 04.40 that you required emergency leave as you had been at Lister Hospital all night when you were aware that you had completed the 3 February 2013 night shift at Chase Farm Hospital Intensive Care Unit.

3.

On 10 February 2013 between 07.30 and 20.00 worked a long day at Chase Farm Hospital, Intensive Care Unit whilst on compassionate leave from your employment with NHS Blood and Transplant between 8 February 2013 and 14 February 2013.

4.

Your actions in relation to Charge 3 above were dishonest in that you misrepresented to NHS Blood and Transplant that you were unable to work due to compassionate reasons but completed a shift at Chase Farm Hospital Intensive Care Unit on 10 February 2013.

5.

On 14 February 2013 worked a long day shift for 11 hours ending at 20.00 at Chase Farm Hospital, Intensive Care Unit whilst on compassionate leave from your employment with NHS Blood and Transplant between 8 February 2013 and 14 February 2013.

6.

Your actions in relation to Charge 5 above were dishonest in that you misrepresented to NHS Blood and Transplant that you were unable to work due to compassionate reasons but completed a shift at Chase Farm Hospital Intensive Care Unit on 14 February 2013.

7.

On 14 April 2013 worked a long day at Chase Farm Hospital, Intensive Care Unit whilst on sick leave from NHS Blood and Transplant.

8.

Your actions in relation to Charge 7 above were dishonest in that you misrepresented to Chase Farm Hospital Intensive Care Unit that you were fit to work when you have been signed off as unfit to work on 10 April 2013 for a period of one month by your General Practitioner.”

The charges were admitted by the Appellant and found proved by the Panel. The Appellant admitted that her actions amounted to misconduct and that her fitness to practise was impaired. Nonetheless, the Panel considered evidence on these issues and made formal determinations, which were directly relevant to its subsequent decision on sanction, as I explain below.

The Appellant submitted that suspension for 12 months was an excessive and disproportionate sanction, and the Panel had failed to have proper regard to the Indicative Sanctions Guidance and to the mitigating factors. The Appellant submitted that a caution order would be an appropriate sanction in this case.

In my view, it is apparent from the transcript of the determinations and the decision letter dated 12 January 2015 that the Panel was appropriately advised by the legal assessor on the legal tests to be applied and the relevant case law. The Panel correctly directed itself on the approach it should take:

“The panel has borne in mind that any sanction imposed must be reasonable, appropriate and proportionate. Although not intended to be punitive, its effect may have such consequences. The panel has an obligation to uphold the public interest taking account of the particular circumstances of your case. The panel had careful regard to the [Indicative Sanctions] Guidance. It recognised that the decision on sanction remained a matter for its own judgment. It weighed your interest with the public interest.”

The Panel had earlier found that the Appellant had been repeatedly dishonest and that her conduct was a serious departure from professional standards.

The Panel was satisfied that the Appellant had breached the following provisions of “The Code: Standards of Conduct, Performance and Ethics for Nurses and Midwives”:

“Preamble

The people in your care must be able to trust you with their health and wellbeing. To justify that trust, you must:

-

make the care of people your first concern…

-

be open and honest, act with integrity and uphold the reputation of your profession.”

“Paragraph 61.

You must uphold the reputation of your profession at all times.”

The Panel found that the Appellant was granted emergency and compassionate leave, requested on the grounds that her partner was ill. Her employer paid her even though she was absent from work, as it was considered that she would not and could not work elsewhere. However, the true position was that the Appellant was working agency shifts on those occasions, and thus receiving double pay. The Panel found that the Appellant did not respect the trust placed in her as a senior nurse. Also, her absence from work had to be covered by other nurses from an already busy team.

On 14 April 2013, the Appellant worked an agency shift when she had just been signed off on paid sick leave for a month from 10 April 2013, because of a painful hip condition. The decision letter stated, at p.8:

“The panel considered that as a senior nurse you could reasonably have been expected to know that you should make candid disclosure of any commitment you made to work elsewhere whilst on leave. The panel also considered that as a senior nurse you should reasonably have been expected to know that you should not work once a medical practitioner had deemed you to be unfit to do so. The panel was of the view that it was wholly irresponsible to be working as a registered nurse whilst medically unfit. By going to work you were representing yourself to be fit to do so, when you were not, and this was dishonest, in addition to presenting a risk to patients.

In relation to all the charges, the Panel considered that the Appellant put her own interests ahead of her obligation to patients and employer. She had acted dishonestly, in a similar and premeditated way, on four occasions. This amounted to a serious departure from acceptable standards. The Panel found that her conduct amounted to misconduct.

The Panel went on to find that her fitness to practise was impaired by reason of her misconduct, stating:

“[The panel] noted the intrinsic difficulty of remedying dishonesty and the fact that yours had been repeated. In those circumstances the panel concluded that there remained a risk of repetition. It was also satisfied that any repetition could place patients at unwarranted risk of harm.”

The Appellant was given a fair opportunity to attend the hearing and make submissions, although she chose only to do in relation to the issue of sanction. In considering sanction, the Panel heard submissions from the Appellant’s counsel as well as evidence from the Appellant.

The Panel accepted the following mitigating features relied upon by the Appellant:

I consider that the Panel was entitled to identify the following factors as aggravating features of the case:

In a detailed passage, the Panel expressly explained why it did not accept other aspects of the evidence and submissions made on behalf of the Appellant, in relation to the seriousness of her misconduct, her insight and the risk of repetition. The Appellant criticised the Panel’s conclusions, on the grounds that it was irrational and unfair not to accept the Appellant’s evidence, which she said was cogent and unrebutted. She also submitted that the Panel erred in failing to expressly direct itself as to the burden and standard of proof. She cited Hefferon v Professional Conduct Committee of the United Kingdom Central Council for Nursing Midwifery and Health Visiting 3 March 1988 10 BMLR 1 in which Watkins L.J. stated it was “most necessary” that the committee should be correctly directed by the legal assessor, either in open session or in private, as to the burden and standard of proof to be applied when deciding whether the allegations were substantiated on the evidence.

I accept the NMC’s submission that there is no formal burden or standard of proof at the sanction stage of the proceedings; rather it is for the Panel to use its own professional judgment to decide what sanction would be proportionate in order to protect the public interest, which includes (1) protection of patients and others; (2) maintenance of public confidence in the professions and the regulatory body and (3) declaring and upholding proper standards of conduct and behaviour: see “Indicative Sanctions Guidance” paragraphs 14 to 18, and the cases cited therein.

In my view, the Panel adopted a legitimate approach and was entitled to come to the conclusions which it did. Contrary to the Appellant’s submission, the Panel was not obliged to accept the Appellant’s evidence when it was considering issues such as the degree of her insight and the risk of repetition. At the stage of determining sanction, the Panel had to assess the evidence and submissions that it heard and it was entitled to afford them such weight as it saw fit, including rejecting them altogether, if appropriate. This was an exercise of judgment by the Panel.

The Appellant submitted that the Panel did not give her a fair opportunity to answer points adverse to her, contrary to Hefferon (supra).On the issue of her health, the Panel said:

“You relied upon what you said your GP had told you as regards returning to work once you felt well enough to do so. The panel noted that no independent evidence had been adduced to confirm the advice given by your doctor. In any event, whatever the advice, you had been certified as ‘not fit for work’ on 10 April 2013. It was not honest to have concealed this from … Chase Farm ICU before you committed yourself to work shifts there.

“You had felt well enough to undertake a shift at Chase Farm ICU whilst on sick leave notwithstanding the side effects that might have arisen following a significant increase to your morphine-based medication. You told the panel that you had been assessed prior to your ultimate return to work after your sick absence, and that you had then been considered well enough to work. There was no independent evidence of this either. In addition, the panel was not satisfied that there was wholly reliable evidence to suggest that you were able to manage your condition at all times without implications for patients.”

In my judgment, the Appellant’s criticisms were without foundation. These were not new points, and the Appellant had ample opportunity to put her case. It was disingenuous to submit that the Appellant’s health was not in issue because these were conduct, not health proceedings. Her health was directly relevant to charge 7, as the Panel’s findings on misconduct indicated (above). Both in her witness statement and orally at the sanction hearing, the Appellant volunteered extensive evidence about her ill health and her medication, and then sought to argue that she was in fact fit to work. The Panel plainly doubted the reliability of her evidence, and in my view, they were entitled to do so. It was part of the Panel’s role to assess the truthfulness and plausibility of her mitigation. Furthermore, the Panel was obliged to take into account the Appellant’s evidence of her illness and the side-effects of her increased medication when considering the public interest, if it was raised by way of defence: see Moody v General Osteopathic Council [2008] EWCA Civ 513, per Sedley L.J. at [9].

On the issue of financial management, the Panel said:

“You acknowledged that you had been acutely anxious about your husband’s illness and his potential loss of income as a self-employed person. The panel was not in a position to reach a view on the realism of your anxieties on the basis of the evidence before it. However, it was not satisfied that you had taken a comprehensive range of measures on the basis of informed financial advice as to how to address those anxieties were they to recur in the future. The panel noted that as regards the maintenance of mortgage payments and support for a close relative you had taken steps to acquire an insurance policy to maintain some financial continuity were your income to be disrupted at any time. However the panel was not satisfied that you had yet fully addressed the requirements of prudent forward financial planning so as to manage unexpected pressures for the future.”

The Appellant gave evidence of her financial difficulties in her witness statement and in her oral evidence. It was her explanation and mitigation for her misconduct. Therefore it was reasonable and fair for the Panel to explore with the Appellant the likelihood that she might in the future experience similar financial difficulties which would again lead her to behave dishonestly. The Panel members gave her a fair and sufficient opportunity to reassure them on this issue, but she was unable to do so. Risk of repetition was a key concern for the Panel. The evidence which the Panel heard in relation to her financial difficulties was potentially relevant to the risk of repetition, and could not be ignored when considering the public interest for the purposes of sanction, applying the principle in Moody (supra).

On the issue of secondary employment, the Panel said:

“You gave relatively little evidence about what you had learnt in relation to managing conflicts of interest over secondary employment. You were not clear about how you would familiarise yourself with the policies and requirements of any employer as regards secondary employment during leave periods. Accordingly, the panel was not satisfied that you had fully digested employers’ likely expectations of employees, and the requirements of professional discipline in terms that would protect patients and the wider public interest in future.”

I cannot accept the Appellant’s submission that secondary employment was not part of the charge or evidence in the case. Her misconduct stemmed from her employment by two different employers. It followed therefore that her awareness of the policies which applied to secondary employment was a matter which went directly to the risk of the Appellant repeating her conduct and was accordingly an issue that the Panel was fully entitled to consider.

In accordance with the “Indicative Sanctions Guidance”, the Panel then considered the available sanctions in ascending order, considering the least restrictive first.

The Panel carefully considered a caution order but rejected it for the following reasons, which I find to be both reasonable and sufficient:

“The panel carefully considered a caution order. The panel considered that you had shown some insight in that you apologised, shown remorse for your actions and had demonstrated some understanding of the impact for the reputation for the profession. It also acknowledged that there has been no repetition of your dishonesty in the last two years.

However, the panel considered that your insight was not yet fully developed. Given the concerns it identified about your conduct, as set out in this determination, the panel was not satisfied that you could properly be permitted to practise without restriction. The panel also considered your dishonesty in the light of your role as a senior Band 7 nurse and that you had been dishonest with two separate employers. It considered that you had not fully faced the implications of your dishonesty. It was not yet wholly confident that you would not repeat this behaviour, even though the risk of repetition following your experience of these proceedings might be regarded as modest.

Again the panel noted that a caution order would not restrict your practice. In the light of the panel’s findings as to the risk of repetition in its determination on impairment, the panel concluded that such an order would not sufficiently protect the public. Further, it determined that such an order would not adequately address the seriousness of your dishonesty. It has been repeated. It was not at the lower end of the spectrum of impaired fitness to practise. A caution order would be insufficient to mark the seriousness of your misconduct and uphold the reputation of the profession.”

The Panel went on to find that it would not be possible to formulate workable conditions of practice and the charges did not relate to her clinical practice. Moreover, agency work would not provide an appropriately reliable environment for a conditions of practice order. A conditions of practice order would not be pertinent to the dishonesty found, nor would it sufficiently and proportionately mark the seriousness of the dishonesty. Again, I find this explanation to be both reasonable and sufficient.

The Panel next considered a suspension order and concluded that it would be appropriate in the circumstances of the Appellant’s case. The Panel said:

“In its consideration of a suspension order, the panel again noted that there has been no suggestion of any repetition of your misconduct in the last two years, and that your behaviour had not resulted in any actual harm to patients. The panel determined that your misconduct, whilst serious enough to warrant temporary removal, was not fundamentally incompatible with you remaining on the register. The panel concluded that a period of suspension would be sufficient and proportionate to address the public interest in this case.

…The panel determined that a suspension order for the maximum period of 12 months was necessary to satisfy the public interest in this case. Further, the panel considered that this would provide a sufficient period for you to develop and demonstrate full insight into your behaviour and its impact, and to address each of the concerns expressed by the panel in this determination.

The panel bore in mind the hardship that such an order might cause you. However, it considered that any hardship was outweighed by the public interest as regards protecting patients, maintaining public confidence in the profession, and sending to the public and the profession a clear message about the standards of behaviour required of a registered nurse.”

The Panel then set out the matters which the Appellant ought to address before the next hearing at the end of the period of suspension when the order would be reviewed.

The Panel went on to consider a striking-off order but concluded that, as the protection of the public and the public interest would be properly and fully addressed by a suspension order, it would be disproportionate to impose a striking-off order.

In my judgment, the Panel’s judgment that a 12 month suspension order was the appropriate sanction was both reasonable and proportionate in the circumstances of this case.

The Appellant submitted the decision was inconsistent with a similar case - NMC v Lovie - decided by a Panel in Edinburgh in December 2014, in which a caution order was imposed. This submission was also made to the Panel by the Appellant’s counsel and so they had the opportunity to consider Lovie in reaching their decision. Generally, I accept the NMC’s submission that citation of sanction decisions by Panels in other cases does not generally assist as each case turns on its own particular facts and involves a careful assessment of the individual nurse. Moreover, even if another Panel was more lenient, that would not establish that a more severe sanction was wrong. See Oluyemi v Nursing and Midwifery Council [2015] EWHC 487 Admin, per Lewis J. at [52]. Equally, another panel might have decided that a nurse guilty of such dishonest misconduct ought to be struck off. Consistency in decision-making is achieved by application of the “Indicative Sanctions Guidance”: see paragraphs 9 & 10. I note that in Lovie the panel’s assessment of the registrant, and her conduct, was markedly more favourable than in the instant case, and so it does not assist me in assessing whether the sanction imposed on the Appellant was wrong or not.

Finally, applying the principles set out in paragraph 13 above, I consider that the Panel’s reasons were careful, detailed and clear and so certainly met the standard required.

For these reasons, I dismiss the appeal.