Ajala v Nursing and Midwifery Council [2012] EWHC 2976 (Admin)

Case No CO/9163/2011[2012] EWHC 2976 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 5th October 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE HADDON-CAVE
Between
OLA AJALAClaimantv
Between
NURSING AND MIDWIFERY COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss J Russell-Mitra (instructed by Newmans LLP) appeared for ClaimantMr J Hunt (instructed by NMC) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE HADDON-CAVE: I am grateful to Miss Jessica Russell- Mitra, counsel for the applicant in this matter, and Mr James Hunt, counsel for the respondent in this matter, for their balanced and cogent submissions on either side in this appeal.[2]This is a statutory appeal pursuant to Article 38 of the Nursing and Midwifery Order (2001) 2002 (SI 253) from a decision of the Conduct and Competence Committee of the Nursing and Midwifery Council (CCC), dated 24th August 2011.[3]The appellant in this matter, Miss Ola Ajala, appeared before the CCC on 24th August 2011 in person and the Panel found that the appellant's fitness to practise was currently "impaired" and imposed a sanction of a suspension order upon her of 6 months but no interim order.[4]The appeal is brought, as I have said, pursuant to Article 38 of the relevant statutory instrument, which provides as follows:
"38(1) An appeal from- (a) any order or decision of... the Conduct and Competence Committee... shall lie to the appropriate court ..."
[5]In the circumstances of this case the appropriate court is this court. At paragraph (3) of Article 38 provides:
"The court May- (a) dismiss the appeal; (b) allow the appeal and quash the decision appealed against; (c) substitute for the decision appealed any other decision the Practice Committee concerned or the Council, as the case may be, could have made; or (d) remit the case to the Practice Committee concerned or Council, as the case may be, to be disposed of in accordance with the directions of the court ..."
[6]The appellant appeals against the imposition of the 6 month suspension order. Background[7]The background to this case and the hearing before the CCC on 24th August 2011 is briefly as follows. On 28th September 2008 the appellant opened a mail collection account at Slough sorting and delivery post office, using two forms of false identification. Over a period of some 4 to 5 days, between 26th September and 1st October 2008, she collected various letters from that sorting office. She was arrested on 3rd October, at which time she was found in possession of a driving licence in the name of a third person, an Islington library card in the name of another person, a Nationwide Flex Account card in the name of another person and an Alliance & Leicester account statement in the same name as the driving licence, together with a utility bill in the same name as the person whose driving licence she held.[8]The appellant appeared at the Reading Magistrates' Court on 1st October 2010 and pleaded guilty to these offences. She fell to be sentenced by Mr Recorder Malins, who said this:
"... Miss Ajala, I have to sentence you this morning for two offences of dishonesty, the first being in possession of an identity document with the intention of using it for establishing a registerable fact about yourself, contrary to Identity Cards Act, [and then an offence] contrary to the Fraud Act, possession of a library card and an Alliance & Leicester bank statement and energy bill for use in the course of or in connection with a fraud. These are serious offences. There is absolutely no doubt in my mind that what is called 'the custody threshold' has been passed, that is to say a prison sentence immediately is undoubtedly justified in this case and I will tell you why. Because of the way in which it was planned, executed, involved documents of a vulnerable person, not borne out of need but of greed. No doubt whatsoever that the appropriate sentence is one of custody.... I give you credit for the fact that you pleaded guilty in the Crown Court. I give you credit for the fact that there is some indication before me you were by no mean the prime mover and that another person, a man, was exerting influence of a heavy nature upon you. I take into account that also there is no evidence you personally gained or that this woman lost money."
The learned Recorder then went on to outline the various other aspects of mitigation in relation to the appellant, including glowing references from her work as a nurse in the NHS and the fact that she was sole carer for her 6-year-old son who was unwell. It was for those reasons that the Recorder suspended the prison sentence which he imposed of 16 weeks concurrent for both offences, suspended for a period of 12 months. He also ordered the appellant to do 100 hours of unpaid work.[9]On 8th February 2010, some 3 months earlier, the appellant had also been convicted at West London Magistrates' Court of failing to provide a specimen of breath for analysis. The circumstances of that offence were very briefly that the appellant was passenger in a car with others which suffered an accident. The police were on the scene. They requested both her and the driver of the car to provide a breath test. She failed initially the breath test and stated that she was asleep when the accident occurred. She was initially arrested for being drunk in charge of a vehicle. Her response to caution was:
"I hope I can see you. I know I have been drinking. I sat in the passenger seat and closed my eyes."
She was taken to Chelsea police station and was requested to provide a sample of breath by the custody sergeant. She refused to provide a sample of breath and indeed refused to listen to procedures at the police station. Request was made several times but refused.[10]She was interviewed later but deemed unfit to be interviewed. Those details were taken from the summary presented by the case presenter to the CCC in opening. The appellant was subsequently explained that because she was not the driver, she did not understand why she had to give a breath sample.[11]Those two convictions were the basis of the charges which were presented to the CCC at the hearing on 24th August 2011, with the charge that in the light of these two convictions, the appellant's fitness to practise was impaired.[12]The appellant represented herself. She stated she had no objections to the charge on any point of law. She was asked whether she admitted the facts that had been read out in relation to the charges and she said: "Yes, I do" but she did not accept that her fitness to practise was impaired.[13]The appellant had only been admitted to the Nursing Roll in 2009. The appellant had therefore only been practising as a nurse for a relatively short period of time before she came up before the CCC on these charges.[14]The hearing took place before a fully constituted Panel and in the course of the hearing the appellant was cross-examined by the case presenter and the members of the Panel.[15]The Panel gave its ruling early in the afternoon and found that the appellant's fitness to practise was impaired. In the course off setting out its reasons for its finding, and inter alia referring to the two convictions which the appellant had admitted, the Panel said this (page 37):
"The Panel has had regard to the case law referred to, namely Bolton v Law Society 1994; GDC v Fleischman (2005), and NMC v Paula Grant (2011). The Panel considered that the convictions to be serious and in particular the dishonesty matters for which you are still subject to a suspension sentence of imprisonment. The Panel did not view these offences as one-off, but, rather, a systematic offending from 28th September 2008 to 3rd October 2008 when she was arrested at a post office when she was attending to pick up post from the mail collect service which she had set up fraudulently. The Panel determined that both convictions damaged the reputation of the profession and issues of fraud and dishonesty are very serious for a nurse, as the public should be able to expect registrants to be honest and act with integrity. The Panel noted that the judge in sentencing the registrant remarked: These are serious offences. There is absolutely no doubt in my mind that what is called the 'custody threshold' has been passed, that is to say a prison sentence immediately is justified in this case. I will tell you why because the way in which it was planned, executed involved documents of a vulnerable person and not borne out of need but out of greed. The Panel accepted that the Registrant may have been influenced by a partner in the fraud matters, but she admitted these dishonest offences was a good character before these convictions and has shown remorse and gained some insight into her offending. Further, she's worked without concerns. Nevertheless, the Panel considered these convictions were of such a serious nature that the Panel found her fitness to practise is impaired."
[16]The Panel then went on to consider the question of sanction and subsequently, after retiring again, gave its ruling on sanctions as follows: "The Panel has considered your case very carefully and has decided to make a suspension order for a period of 6 months. The effect of this order is to suspend your registration and, obviously, the NMC Register will show that your registration is suspended. The reason for this decision is as follows. The Panel considered the submissions of the NMC case presenter and the registrant. We've accepted the advice of the legal assessor. Making its decision the Panel took into account the indicative sanctions guidance and the case law referred to at the appellate stage as well as the cases of Nicholas Pillai v General Medical Council, Solicitors Regulation Authority v Sharma and Atkinson v General Medical Council. The Panel had regard to the public interest which includes the protection of members of the public, maintenance and confidence of the profession and the NMC and declaring upholding of proper standards of conduct and performance. It applied the principle of proportionality weighing the registrants' interest with the public interest. The Panel first considered whether to take no action. In determining that having regard to the serious nature of the offences, particularly the fraud matters involving dishonesty, that this would be insufficient. The Panel next considered a caution order. Although the Panel identified some relevant factors were present, namely some insight, genuine regret and apology, there may have been duress, the registrant's previous good character and there had been no repetition of the behaviour, it determined the convictions involving dishonesty were too serious. To make a caution order would not be sufficient to protect the wider public interest of the reputation of the profession. The Panel determined that a conditions of practice order was insufficient and inappropriate as there were no conditions which would sufficiently address the serious issues of dishonesty in this case. The Panel next considered a suspension order. The Panel was aware of the serious view taken of dishonesty and noted the case law in this regard, recognised the striking off was not inevitable in each case. It had regard to the positive testimonials received, the fact that her employer had kept her in employment despite her convictions, and she worked as a nurse without cause for concern. The Panel believe that at the time of the offences she was 22 years old and lacked maturity and had since learned from her conviction and sentence. She moved on in her life showing remorse and regret and held down a job. Further, and at 25 years of age, she has a lot to give to the nursing profession in the future. The Panel acknowledged she was no longer with the partner whom she alleged pressured her into the fraudulent behaviour. She wanted to be a role model for her child. The Panel believe that it was unlikely she would act dishonestly again. Therefore, the Panel considered her convictions were not fundamentally compatible with her continuing to be registered with the NMC. The Panel therefore decided to make a suspension order for a period of 6 months.[17]This order will be reviewed before its expiry..." The Panel then went on to consider whether or not to make and interim suspension order, or an interim conditions of practice order, and decided that since there were no patient protection issues in this case, that was not necessary.[18]For the appellant today, Miss Russell-Mitra has submitted five grounds by way of appeal against the sanction imposed by the CCC of 6 months' suspension:(i) there was no harm to patients or risk to patients;(ii) the CCC did not pay sufficient regard to the principle of the non-punitive nature of the sanction;(iii) the public confidence in the profession is not served by the sanction;(iv) the criteria for a caution was met in the sanction and should have been considered further; and(v) in all the circumstances of the appellant's case a different sanction was appropriate. Miss Russell-Mitra also pointed to the strong mitigation that had been placed before the CCC, together with various character references, which have been helpfully supplied to me today from the appellant's ward manager, clinical charge nurse and deputy team leader as to her continuing good work as a nurse in the NHS. The Law and Approach[19]Appeals of this nature are conducted pursuant to CPR 52 which provides CPR 52.11 as follows:
"(1) Every appeal will be limited to a review of the decision of the lower court unless – (a) a practice direction makes different provision for a particular category of appeal; or (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing. (2) Unless it orders otherwise, the appeal court will not receive – (a) oral evidence; or (b) evidence which was not before the lower court. (3) The appeal court will allow an appeal where the decision of the lower court was – (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court. (4) The appeal court may draw any inference of fact which it considers justified on the evidence. (5) At the hearing of the appeal a party may not rely on a matter not contained in his appeal notice unless the appeal court gives permission."
[20]The Court of Appeal in Meadow v GMC [2007] QB 462, considered the correct approach to be taken by appeal courts from statutory health care regulators such as the General Medical Council or the Nursing and Midwifery Council. Auld LJ said this at paragraph 197:
"On an appeal from a determination by the GMC, acting formerly and in this case through the FPP ..., 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 over-all value judgement to be made by tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers."
[21]More particularly, in relation to the approach of the courts on appeal is very clear. On an appeal against sanction an appellant must establish not just that the order was "wrong" but was "excessive and disproportionate" (see Ghosh v General Medical Council [2011] WLR 1915) or "outside the range of what could be regarded as reasonable" (see R (on the application of Devon) v General Medical Council [2005] EWHC 174). See also generally Low v General Osteopathic Council [2007] EWCA 2839, and in particular paragraph 17.[22]So the test which Miss Russell-Mitra has to overcome in this case is a high one, namely to persuade the court that the suspension order of 6 months imposed in this case was either "excessive and disproportionate" or "outside the range of what could be regarded as reasonable".[23]Taking each of her grounds of appeal in turn as follows: 1. No harm or risk to patients.[24]She submits that the two convictions which were the gravamen of the charges before the CCC did not give rise to "any harm or risk" to patients. This may strictly be the case. However, it is to some extent missing the point and the real thrust of the CCC's concern, which was put at the forefront of the case by the case presenter when she cross-examined the case presenter, Miss Sarah Jane Smiles, when she cross-examined the appellant at the hearing, when dealing with the appellant's assertion that no harm had been to patients who the appellant dealt with. The case presenter asked, with no harm had been caused to patients or the appellant's colleagues, the case presenter said:
"That's not true though, is it, given that dishonesty is an offence which brings your trust and integrity as a professional into question?"
The case presenter went on to say this: "Let's deal with the scenario of a patient you may come into contact with. If you come into contact with a patient who initially does not know of these offences and then came to know of them, do you think that this would cause them to have concern about what you were telling them about your trust?" 2. The Panel did not pay sufficient regard to the principle of non-punitive nature of the sanction.[25]Miss Russell-Mitra submitted that sanctions by the CCC were not intended to be punitive. But in this case there was an extra punitive element because there had been delay in bringing the proceedings before the CCC which had caused extra significant stress on the appellant.[26]In this regard she relied on the decision of Blake J in Selvarajan v General Medical Council [2008] EWHC 182 (Admin). That was, however, a case of an extreme delay of 10 to 12 years in relation to a doctor who was, by the time of the hearing before the General Medical Council aged 66.[27]In the present case, I am told by Mr Hunt that the key performance indicators at the Nursing and Midwifery Council, as regards the time between referral to completion of hearings indicate 18 months. In this case there was a minor delay because the matter took approximately 2 years between referral and completion but that, he submits, is an immaterial delay in the context of this as a case. This case is certainly a far cry from the circumstances of Selvarajan, which I find of little or no relevance or assistance in the present case.[28]In any event, as Collins J said in R (On the application of Dr Keith Bevan) v General Medical Council [2005] EWCA 174 (Admin), at paragraph 26: whilst punishment is not a purpose behind any sanction (in this case in relation to the General Medical Council) of course it is inevitable that there will be a punitive element; that is, as he says, inevitable in the nature of a sanction of suspension or erasure. But it is quite clear to me from the ruling of the CCC on sanction, which I have set out in full above, that the CCC did very carefully consider all the aspects of the sanction and the effect that it would have. C Public confidence in the profession is not served by the sanction.[29]Miss Russell-Mitra submits that public confidence in the profession is not served by the imposition in this case of a suspension order of 6 months. I disagree. The Nursing and Midwifery Council Code lays down standards of conduct, performance and ethics for nurses and midwives and states in very clear terms as follows:
"1.2: As a registered nurse... you must... act in such a way that justifies the trust and confidence of the public have in you; upholding and enhance the good reputation of the profession. 1.5 You must adhere to the laws of the country in which you are practising. 7.1 You must behave in a way that upholds the reputation of the profession. Behaviour that comprises this reputations may call your registration into question, even if it is not directly connected to your professional practice."
[30]In the well-known passage of Lord Bingham MR in Bolton v The Law Society [1993] EWCA Civ 32, Lord Bingham made it absolutely clear that the maintenance of trust in professions was critical. In that case involving the suspension of a solicitor. Lord Bingham said this, having commented that one purpose of suspension was to make the offender meticulous in his future compliance with the required standards, he went on:
"The second purpose is the most fundamental of all: to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission."
[31]There is useful guidance in the present context of extracurricular dishonesty by those in the nursing profession to be found in the decision of Mitting J in Parkinson v Nursing and Midwifery Council [2010] EWHC 1898 (Admin), where the registrant was found to have dishonestly worked for another employer while reporting sick to another. Mitting J said this at paragraph 18:
"A nurse found to have acted dishonestly is always going to be at severe risk of having his or her name erased from the register. A nurse who has acted dishonestly, who does not appear before the Panel either personally or by solicitors or counsel to demonstrate remorse, a realisation that the conduct criticised was dishonest, and an undertaking that there will be no repetition, effectively forfeits the small chance of persuading the Panel to adopt a lenient or merciful outcome and to suspend for a period rather than to direct erasure."
[32]In my judgment, the rationale of the CCC's approach is well expressed in the passage that I have quoted above, which I repeat again here:
"The Panel determined that both convictions damaged the reputation of the profession and issues of fraud and dishonesty are very serious for a nurse, as the public should be able to expect registrants to be honest and act with integrity."
[33]The Panel, when considering the sanction very carefully went through the various stages of sanction which were open to them. Their approach to this process was, in my judgment, meticulous - in contrast perhaps to that of the Panel in James v Nursing and Midwifery Council [2008] EWHC 365 (Admin) which was criticised by Holman J. Having dismissed taking no action, the Panel turned to the question of a caution order and said:
"... we determine that the convictions involving dishonesty were too serious."
And:
"To make a caution order would not be sufficient to protect the wider public interest in the reputation of the profession."
[34]Miss Russell-Mitra subjected those words, and some others the ruling, to something of forensic analysis and submitted that the CCC were taking too broad a brush view that all convictions for dishonesty were too serious. This, in my judgment, was an incorrect reading of the CCC's reasoning. It is quite clear that the CCC determined "the convictions involving dishonesty" in this case were too serious. That indeed was the view taken by Recorder Malins who determined that the custody threshold had been passed.[35]There is a further point on the wording of the rulings by the CCC taken by Miss Russell-Mitra, namely that the CCC, she submits, did not give full weight to the finding by Recorder Malins that the appellant had been subject to coercion by another man in the commission of these offences. Miss Russell-Mitra said that the CCC had used the phrase "may have been influenced by a partner" in relation to the fraud matters.[36]In my judgment however, again this is an unfair reading of the CCC's reasons. The Panel, quite clearly accepted the premis that the appellant may have been influenced by a partner and in using the word "influenced" having immediately before the passage in question on page 37 of the transcript quoted from the decision of the Recorder Malins, they clearly would have well in mind his finding about coercion.[37]It is not always helpful to subject findings of such Panels to a minute forensic examination, as if it is an exercise in statutory construction. A fair reading of the CCC's reasons leads me to conclude that the hearing and the reasoning cannot be faulted. D The criteria for caution was not met and the sanction should have been considered further[38]There is nothing in this point. The Panel very clearly, as I have stated, considered the various options open to them but very clearly determined that whilst some relevant factors, which might give rise to a caution were present, the convictions involving dishonesty were too serious to make a caution order the appropriate sentence. E In the circumstances of the case a difference sanction was appropriate. Miss Russell-Mitra submits, somewhat bravely, that in all the circumstances a different sanction was appropriate because this case of dishonesty lay at the less serious end of the spectrum and the conviction in relation to failing to provide a breath test was not a conviction of dishonesty but merely poor behaviour.[39]The problem about this, her final submission, is that the conviction of dishonesty was one which the Recorder determined was sufficiently serious to pass the custody threshold. Secondly, that the CCC were having here to consider the wider public interest in protecting the reputation of the profession.[40]Her submissions therefore, well put as they were, really founder on the fundamental point that the sanction imposed by the CCC was very plainly one to address to the wider public interest in protecting the reputation of the nursing profession as highlighted by the Nursing and Midwifery Council Code quoted above.[41]The last word in this case is appropriately to be left with Laws LJ in Solicitors Regulatory Authority v Sharma [2010] EWHC 2022 in which he said this at paragraph 34:
"Their first finding was that 'there was no harm to the public.' I assume that by this that the Tribunal meant that no client suffered financial loss. It seems to me that that is a very narrow way of looking at dishonesty, and wholly fails to recognise the wider issues involved. In my judgment there is harm to the public every time a solicitor behaves dishonestly. It is in the public interest to ensure that, as it was put in Bolton, a solicitor can be 'trusted to the ends of the earth.'"
[42]As Mr Hunt elegantly put it for the NMC, there is harm to the public and the NMC every time a nurse behaves dishonestly.[43]For those reasons this appeal is dismissed.

MR JUSTICE HADDON-CAVE: Costs?

[45]MISS RUSSELL-MITRA: My Lord, you have some knowledge of her circumstances. Effectively she's a single parent and she has no funding and we are in a position this case is not being funded by anyone and so in the circumstances I would ask there be no order for costs.

MR JUSTICE HADDON-CAVE: That seems pretty reasonable Mr Hunt but you may be in mercenary mode.

[47]MR HUNT: Very much so, my Lord. I strongly oppose the application that there should be no order for costs in this case. Quite clearly some effort has been undertaken by the Council in responding to this appeal. Some further evidence of undertaking in relation to the investigating this matter, preparing for it and evidently efforts have been undertaken to respond to the appeal today.[48]I submit, my Lord, that there is a clear need for costs in this case and it would be a proportionate measure to impose those costs. Furthermore it would be reasonable to impose costs on the appellant in this case. The appellant would have been fully aware of the potential outcome, furthermore the potential outcome of such costs being imposed upon her.[49]My Lord, I hope that assists at that stage.

MR JUSTICE HADDON-CAVE: Miss Russell-Mitra?

[51]MISS RUSSELL-MITRA: My Lord, all I can say is this. She would be in extreme difficulty in paying those costs and that --[52]MR JUSTICE HADDON-CAVE: It might be said that those who pursue such appeals, with full knowledge, should live by their decision. Is there any reason in principle why the appellant should not pay the costs apart from impecuniousity, in circumstances where the appeal has been robustly dismissed?[53]MISS RUSSELL-MITRA: My Lord, I can do nothing more than assert that an order for costs would be effectively further punishment on someone who was desperately trying to cling onto a profession that supports her and her child and which she loves. She's left bereft by this judgment, as she was that at the Nursing and Midwifery Council and she is going to be in some severe difficulties in relation to it. In terms of the principle, there is no principle that could stand against her paying those costs but, my Lord will perhaps at least consider reducing them on the basis of the situation that she is in.[54]MR JUSTICE HADDON-CAVE: Can you help me with this. Is there sometimes funding from the Union before appeals?[55]MISS RUSSELL-MITRA: There is in the General Medical Council but it seems the nurses unions do not stretch the funding.

MR JUSTICE HADDON-CAVE: They never fund appeals?

[57]MISS RUSSELL-MITRA: I would not like to say one way or another as to certainty one or the other. My friend might have better knowledge.[58]MR HUNT: My Lord, my understanding is that on certain occasions the Royal College of Nursing do fund appeals and furthermore so UNISON in certain circumstances, but I am unable to assist your Lordship in relation to whether this matter could be funded.[59]MR JUSTICE HADDON-CAVE: I am afraid Miss Russell-Mitra, that your appeal having been dismissed on a number of grounds, the costs must follow the event. Therefore, I order the appellant to pay the respondent's costs occasioned by the appeal to be assessed if not agreed.[60]I am grateful to everybody for their able assistance. I am sorry for keeping the court longer. It is the last case today. I am grateful. Thank you very much.

Cited in 2 later judgments