“19 Appeals of this nature are conducted pursuant toCPR 52 which providesCPR 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).” (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. “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.”
“Role and status of the indicative sanctions guidance 1 This guidance has been developed by the Nursing and Midwifery Council (NMC) for use by its Conduct and Competence Committee (CCC) and Health Committee (HC) when considering what sanction to impose following a finding that a nurse or midwife’s fitness to practise is impaired. This guidance is also to be used when a panel is reviewing a previously imposed order. 2 This guidance is an authoritative statement of the NMC’s approach to sanctions. It is not an alternative source of legal advice. When appropriate, the legal assessor will advise the panel on questions of law, including questions about the use of this guidance and the approach it should take. Panels must always have in mind that each case is different and should be decided on its unique facts and merits.”
“Those are very useful guidelines and they form a framework which enables any tribunal, including this court, to focus its attention on the relevant issues. But one has to come back to the essential exercise which the law now requires in what lies behind the purpose of sanctions, which, as I have already pointed out, is not to be punitive but to protect the public interest; public interest is a label which gives rise to separate areas of consideration.”
“16.1 protection of patients and others 16.2 maintenance of public confidence in the professions and the regulatory body 16.3 declaring and upholding proper standards of conduct and behaviour.”
“…as a general principle, where a practitioner has been convicted of a serious criminal offence or offences he should not be permitted to resume his practice until he has satisfactorily completed his sentence. Only circumstances which plainly justify a different course should permit otherwise. Such circumstances could arise in connection with a period of disqualification from driving or time allowed by the court for the payment of a fine. The rationale for the principle is not that it can serve to punish the practitioner whilst serving his sentence, but that good standing in a profession must be earned if the reputation of the profession is to be maintained”
“… The Panel’s view is that Mr Iseghehi’s fitness to practise was clearly impaired at the time of the incident in August 2010. The offence was serious and it was caused by Mr Iseghehi’s behaviour and attitude. The Panel noted the references provided, which made it clear that Mr Iseghehi was highly regarded as a nurse, and it recognises that it has heard nothing to suggest that there has ever been a problem with the nursing care he provided. However, in the Panel’s view, a conviction such as this is extremely damaging to the reputation of the profession and is therefore hard to remedy. The evidence before the Panel did not satisfy the Panel as to Mr Iseghehi’s insight. It has heard nothing to explain why he behaved as he did on the day in question and nothing which would reassure it that such behaviour will not be repeated or that Mr Iseghehi understands the seriousness of his action.”
“It noted that the imposition of a suspension order would address any public protection concerns and might allow Mr Iseghehi to undertake some action to remedy his impairment, which might allow his eventual return to nursing practice. However, the Panel concluded that a suspension order would not be sufficient to address the wider public interest in this case. Mr Iseghehi’s actions on22 August 2010 were not a momentary aberration. After remonstrating with the driver of the other vehicle, he twice deliberately drove into its path. His actions had the potential to kill or seriously injure others. As a mental health nurse, Mr Iseghehi might be expected to be able to remain calm despite any provocation, but on this occasion he let his anger get the better of him, with highly undesirable results both for himself and others. The Panel has seen and heard little to suggest that this has been remedied. The Panel concluded that a striking-off order should be imposed on all three available grounds: for the protection of the public; as the conviction is fundamentally incompatible with remaining on the nursing register; and in order to maintain public confidence in the profession and the regulatory process.”