Kearsey v Nursing And Midwifery Council [2016] EWHC 1603 (Admin)

[2016] EWHC 1603 (Admin)

Case No CO/6676/2015

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 01/07/2016

Before

MR JUSTICE OUSELEY

Between

JAMES KEARSEYAppellant

NURSING AND MIDWIFERY COUNCILRespondent

Ms Gemma Hobcraft (instructed by Hill Dickinson LLP) for Appellant

Mr Matthew Cassells (instructed by Nursing and Midwifery Council) for Respondent

Hearing Hearing dates: 7th June 2016

Judgment

MR JUSTICE OUSELEY :

[1]The Appellant is a registered nurse whose name was removed from the Register of nurses by a decision of the Nursing and Midwifery Council’s, NMC’s, Conduct and Competence Committee or Panel on 27 November 2015. It found him guilty of misconduct, that his fitness to practise was impaired and it decided that the sanction had to be the removal of his name from the Register. The charges proven against him were:(1) that he had been convicted of assault by beating his then partner,

(2) he had failed to report his conviction to his employer, or

(3) to notify the NMC;

(4) he did not disclose it to his employer when discussing his fitness to practise, and

(5) on 5 September 2014 he provided an inaccurate account of the facts behind the conviction to his employer, knowing that it was inaccurate. In the latter respect only

(6) he was found to have acted dishonestly. He did not attend the 3-day hearing before the Panel, nor was he represented. He appeals pursuant to Article 38 of the Nursing and Midwifery Order 2001 (2002 SI No.253), the Order, which governs the conduct and functions of the NMC. The Panel decision, he contends, was wrong or unjust.

[2]Ms Hobcraft for the Appellant raises five grounds of appeal:(1) no valid notice of the hearing was served since the NMC later sought to rely on material which was not served with it as it should have been;

(2) the Panel wrongly concluded that he was absent voluntarily from the hearing;

(3) the investigatory interview should not have been relied on to any significant extent in view of the evidence about his mental state at the time of interview, and this fact was ignored by the Panel;

(4) the evidence before the Panel included statements by the victim about the Appellant’s violent and abusive behaviour towards her which went beyond that charged, and which should have been separately charged if relied upon;

(5) the decision on sanction was inadequately reasoned.

[3]There is no need to rehearse the well-known principles which govern this appeal.

Ground 1: Notice of hearing

[4]The Nursing and Midwifery (Fitness to Practise) Rules, Order in Council 2004 No 2761, the Rules, provide in R11(1) that a notice of hearing must be sent to the registrant. By R11(3), this notice “shall…(b) contain a charge particularising the allegation, which shall set out any alleged facts on which it is based, and be accompanied by copies of any documents in support that have not previously been disclosed to the registrant by the Council or a Practice Committee.” It must also inform the registrant of his right to attend and call evidence or to cross-examine witnesses, and that the Committee has power to proceed in his absence.

[5]The notice of hearing was accompanied by some documents but not by all of those which the NMC later sought to rely on before the Panel. The Panel was not aware of this when it reached its decision that, because he had been properly served, it would proceed in the Appellant’s absence. The hearing had been underway for just over half an hour when the Legal Assessor raised the point that the Appellant had not been sent certain documents. An explanation for this was provided; it related to when the documents came into existence and their sensitive nature, but whatever it made of the explanation, the Panel decided that it would not be fair to consider those documents, and did not do so. No complaint is made of that decision. It was not suggested that their exclusion deprived the Appellant of material which could have assisted his case. Nor is it suggested that they played some later part in the decisions.

[6]Ms Hobcraft submits that the decision that the notice of hearing had been properly served, that the mandatory requirements of R11 had been met, and that it was therefore a “valid” notice of hearing, had been reached in ignorance of the correct factual position in relation to the documents which should have been served with it. Accordingly, it reached a decision that a valid notice of hearing had been served when it had not been. The Panel should have adjourned for a further notice of hearing to be served, and should have done so even though the Panel had decided that it would not admit those documents into evidence. The die was cast for the validity of the notice of hearing by the NMC’s intended reliance on the missing documents at the hearing.

[7]This is a procedural point of some technicality, and not a sound one either. Principles of public law have not required, for some time, the division of statutory obligations into mandatory and directory requirements, such that any failing in “mandatory” procedural requirements necessarily invalidates all subsequent steps or causes a tribunal to lose jurisdiction. But even on the most technical level, the notice served by the NMC did contain all the material actually relied on, save for a brief period, about which no argument on prejudice arises. The notice of hearing may have had a defect in that it was not accompanied by all the material on which the NMC intended to rely, but the purpose of the notice of hearing, to send to the registrant the material on which the NMC was actually to rely, was achieved. There was no unfairness either. The position achieved was exactly the same as if a further identical notice of hearing had been served for a further date ahead, save that a wholly pointless adjournment was avoided. There is nothing in this point.

Ground 2: The decision to proceed in the Appellant’s absence

[8]R21 of the Rules provides that where the registrant is not present and is not represented at hearing, the Committee shall require the NMC case presenter to adduce evidence that all reasonable efforts have been made in accordance with the Rules to serve the notice of hearing on the registrant; if so satisfied, the Committee may direct that the allegations be dealt with in his absence.

[9]The Appellant had an address on the Register. That is the same address as he gave on his Notice of Appeal for this appeal. No change of registered address had been notified, formally or informally, to the NMC. Registrants are required to notify changes of address. But as the Panel found, he had not engaged with the investigatory or disciplinary process for a long time, failing to respond to correspondence. As required by R34, the notice of hearing was sent to his registered address by recorded delivery and first class post. However, because of his longstanding failure to engage, the NMC had gone to the expense of hiring a tracing agent to find out whether there was another address at which he could be contacted. Two other addresses had emerged; one was his parents’ address. Two further notices of hearing with the same documents attached were sent to those addresses. There had been no request for an adjournment. The NMC had a witness, a Matron, waiting to give evidence. The Panel concluded that the Appellant had voluntarily absented himself from the hearing and decided to proceed in his absence.

[10]Ms Hobcraft submitted that there was no positive evidence to that effect. In my judgment, there was ample material from which the Panel’s conclusion could be drawn. Indeed, the Panel came to the only rational decision to which it could have come. The Appellant was refusing to participate or even to engage in any way with the processes of investigation and discipline. An adjournment would have served no purpose.

[11]Ms Hobcraft submitted that since one of the reasons why not all the documents had been sent with the notice of hearing was that some were confidential and subject to data protection requirements, and the NMC was not sure that they would arrive at a secure address, the NMC and the Panel could not be sure that the registrant had received the notice of hearing at all. This was not an issue addressed directly by Panel since the question of the un-served documents arose after its decision to proceed in the registrant’s absence. But there is nothing in this point either: the concern about confidentiality arose because documents were being sent to three addresses, with the risk that at one or two the recipient might be someone who should not receive that material. It was the addresses which were not secure; the document delivery was not in doubt. I note that it has never been suggested by any evidence from the registrant that he did not receive the notice of hearing, nor has he said at which addresses or addresses he received it. I see nothing to cause doubt about the correctness of the decision to proceed in the registrant’s absence.

The evidence of the investigatory meeting

[12]The sole witness, referred to as Ms 1, on behalf of their employer, the Dudley Group NHS Foundation Trust, had conducted an interview with the registrant on 5 September 2014. Ms 1 made a record of that interview, called the Investigatory Interview Record. It is not a verbatim record, but is more of a summary of a long interview in the form of questions and answers. It states that notes will be sent to the interviewee for confirmation of accuracy and there is a line for the interviewee to sign his confirmation. The copy before the Panel is not signed. There was no direct evidence that it had been sent for signature. However, Ms 1 gave evidence about it which necessarily involved her saying that it was an accurate record; her evidence was accepted. Nor has the registrant suggested subsequently that any part of it was wrong, which having been served with it as part of the hearing documents, he could easily have done. There was a great deal of evidence from her about her many endeavours to engage with the registrant after this meeting, to none of which he responded.

[13]The gravamen of Ms Hobcraft’s complaint however, was that the Panel had failed to appreciate the significance of the evidence which Ms 1 had given about the registrant’s state of health during the interview, which could have affected the charge of dishonesty in relation to the account he gave to her of the assault. This was the one charge of dishonesty in relation to the particulars of conduct which the Panel found proved. What actually had happened was this: the registrant was convicted by magistrates on 15 January 2014, after a trial, of assaulting his then girlfriend by beating her on 4 July 13. He pleaded not guilty on 17 October 2013. During the police interview the registrant had said that he acted in self-defence and denied any assault. The victim, from her police statement, said that he had been looking through her phone numbers again, accusing her of cheating on him, interrogating her for an hour. She said she wanted to go and was going. He grabbed her arm and pushed her onto the bed, and then grabbed her around the neck, squeezing really hard, choking her. He let go eventually, and then pushed her around a bit. She was then too scared to leave. Her throat felt inflamed and she had bruises and red marks on her neck. She left him two days later; but he had kept trying to ring her and send her messages. After conviction, he was sentenced to a Community Order requiring 150 hours unpaid work in 12 months. He was required to complete the “Structured Intervention to Address Domestic Abuse” workbook. He was also made subject to a Restraining Order for 5 years prohibiting him from contacting the victim by any means or going to her home or work place. He was ordered to pay £500 compensation, as well as costs and a victim surcharge together totalling £710.

[14]The account given to Ms 1 at the interview, which she believed to be true at the time and indeed right up to the Panel hearing itself, was rather different: he only thought that it was a conviction for common assault, not battery, rather than a caution; he had signed to admit it; it had been classed as “low risk as domestic”. It arose out of an affair he was having with a married woman, whose husband had threatened him in the past and tried to follow him. The husband had discovered them at the marital home, in a compromising situation, which had led to a physical altercation. The husband had attacked him, and the registrant was frightened because he, the registrant, was undressed. The registrant had grabbed the husband’s neck and thrown him on to the bed; then the registrant had got dressed and left. He definitely did not hit the husband. He implied that the husband had attacked first. When asked why he had not argued that he had acted in self defence, said that he was going to fight it, and a lawyer had come to his house, but he was really scared of the husband. He did not like talking about it, because it scared him. The registrant was dismissed as a result of the disciplinary hearing in December 2014.

[15]Ms 1 told the Panel that the registrant accepted he had known of his duty to disclose the conviction to their employer and to the NMC, but said that he had been scared to do so. She added that the registrant believed himself to be “whiter than white”, but he appeared to show no understanding of the serious implications of his non-disclosure particularly in relation to the safeguarding of patients. The interview had become more about the registrant than the conviction, and “more of a counselling session”. His demeanour had been tense; he had answered questions in an erratic manner, talking of his previous relationship with girlfriends, and with his parents. Ms 1 had listened, becoming concerned about him, and offering after the meeting to provide support if he wanted to talk to her, an offer he never took up.

[16]The highpoint of the evidence for Ms Hobcraft’s submissions was Ms 1 telling the Panel that she had been actually very concerned for the registrant’s, well being, and his physical and mental state. He had told her that he was ashamed but she thought he showed a complete lack of understanding. Her view at the time of the interview had been that he was not capable mentally at that stage; had he been on the ward she would have suspended him on medical grounds because he was so agitated and incoherent. This was the first time he had spoken about it and it all came cascading out. He wanted to forget it and to sweep it under the carpet. The Panel accepted in full the evidence of Ms 1, accepting that she had not know the truth about what the registrant told her until the hearing.

[17]This was all said to be relevant to his dishonest failure to disclose the real truth at that interview. Ms Hobcraft did not contest that the account was false. She focused on the comment that he lacked mental capacity. The Panel found as follows “In respect of charge 5, the panel considered that Mr Kearsey’s version of events as given to Ms 1 at the investigatory interview was completely untrue. Mr Kearsey told Ms 1 that the conviction related to an assault by him on the husband of a woman with whom he was having an affair in self-defence when it was, in fact, related to domestic violence by him against his then girlfriends. As such, the panel was of the view that a reasonable and honest person would consider that Mr Kearsey’s actions were dishonest. The Panel went on to consider whether Mr Kearsey must have known that what he was doing was, by the standards of reasonable and honest people, dishonest. It was the panel’s view that Mr Kearsey was fully aware of the facts which led to his conviction. However, he made a deliberate decision to give Ms 1 a fabricated account of events which he knew to be false and misleading. The panel therefore determined that on the balance of probabilities, it is more likely than not that Mr Kearsey knew what he was doing was, by the standards of reasonable and honest people, dishonest. The panel was satisfied that a reasonable and honest person would consider Mr Kearsey’s actions dishonest.”

[18]First, there is no evidence at all, and Ms Hobcraft did not suggest otherwise that the evidence showed that he lacked the mental capacity to know that what he said was false, or to know that giving a false account to the employer at that interview was dishonest by the standards of reasonable and honest people. He was facing an investigation, and he told a story which he knew to be untrue, putting a wholly different picture from the truth. The Panel could not have concluded that was not being dishonest. Second, the Panel said it accepted Ms 1’s evidence of how the registrant appeared to her. But, given that she believed he was telling her the truth when she formed that view, and he was lying to her in fact, the Panel had no basis upon which to attribute his demeanour to any genuine feelings of stress, other than those associated with telling a pack of lies at an important interview. Third, it would have been open to the registrant to explain what he said at that interview in evidence to the Panel. He chose not to do so. He did not say that he was unaware of the truth; or that he thought the fact of conviction was all that mattered; or that he was scared to tell the truth or did not know what he was saying. But he did not attend. There is nothing in this point.

[19]Ms Hobcraft also submitted that this evidence was relevant to impairment and sanction. The NMC case presenter had submitted that limited weight should be attached to Ms 1’s evidence of expressions of remorse by the registrant at this interview since he was lying about the events in question. The Panel did not expressly accept that submission, but I see no basis for supposing that they rejected it. It is difficult to see how this evidence of Ms 1’s impression of the registrant from the interview could help the registrant, given that he was lying, and that the comments were made by someone whom he deceived into thinking that he was telling the truth, successfully enlisting her sympathy and care – which he then spurned.

[20]I note that the Panel decided not to draw adverse inferences from the registrant’s non-attendance. That appears to be a policy for NMC Panels. I am not sure that it is required by law in all cases. The NMC may wish to consider whether it is appropriate, and if so when, to draw adverse inferences where a registrant has refused to engage and to attend, when there are obvious matters calling for an explanation, as opposed simply to pointing to the absence of evidence to the contrary of what NMC says. Not all other disciplinary bodies may take the same approach.

The ambit of the conviction charge and the admissibility of evidence

[21]The Panel had the two un-redacted witness statements of the victim as given to the police. In addition to describing the assault which led to the conviction and how it began and ended, the first statement portrayed the background of an abusive relationship between the registrant and victim over the 2-3 months since she had moved in with him. He had totally changed, interrogating her about whether she had cheated on him, reading her emails, Facebook and text messages. He would call her a liar and a slag. She had threatened to leave him on earlier occasions, but he had physically prevented her, forcing her against the wall, pressing into her neck, or grabbing her by the throat. There had been an earlier similar assault, pinning her to the bed by the neck. He had made threats that she would be hurt. She described him as a very manipulative and frightening man, tall, very strong and easily able to hurt her. Her second witness statement referred to the abusive and bullying relationship, as well as describing the effect of the assault upon her for which he was convicted.

[22]Ms Hobcraft’s submission was that the evidence describing the bullying relationship, physical aggression and in particular the earlier assault should have been redacted before being placed before the Panel. If it were to go before the Panel, it had to go before it as the subject matter of a specific charge. Otherwise the evidence was unfairly prejudicial to the registrant.

[23]Ms Hobcraft relied on the decision of HHJ Raynor QC in El-Baroudy v GMC

[2013] EWHC 2894 (Admin)

as support for the proposition that if conduct which could be the subject of a charge, that is a particularised allegation of misconduct, is to be put before the Panel, it must be so particularised, whether it was relevant to a finding of misconduct or only to impairment or sanction. Dr El-Baroudy faced many particularised charges of an allegation of misconduct about the way he dealt with a person in need of medical attention who later died in custody. The particulars of charges did not allege that his failings had caused death or the loss of a realistic chance of survival. Evidence was led to that effect. The issue should have been charged, under the Rules relating to particularisation, in the notice of hearing. As it was not charged, evidence about it should not have been led, nor should it have affected the decisions on impairment or sanction. Admitting the evidence “amounted to a serious procedural irregularity that renders the result on impairment and on sanction unjust.” HHJ Raynor referred to a comment of Collins J in Roomi v GMC

[2009] EWHC 2188 (Admin)

in which he said that the GMC Rules, 15 and 17, meant that the practitioner should not have to face any allegation not contained in the notice of hearing, unless it was amended. In Chauhan v GMC,

[2010] EWHC (Admin) 2003

, King J had allowed an appeal on the basis that the Panel had “improperly and unfairly gone outside the scope of the notice of hearing.” This was confined to the first, fact finding stage: findings could not be based on facts which could have been but which were not particularised. Pill LJ said in Strouthos v London Underground Ltd

[2004] EWCA Civ 402

at [12], an appeal from the EAT, that it was a basic proposition in criminal and disciplinary proceedings that the charge should be “precisely framed” and “the evidence confined to that specifically in the charge”. None of these four cases involved convictions.

[24]Ms Hobcraft’s contention gives rise to an issue over the rules and over procedural fairness. There are various provisions in the Order and Rules relevant to Ms Hobcraft's point. Part 5 of the Order deals with fitness to practise. Art.22 deals with the procedure to be followed where “any allegation is made against a registrant to the effect that his fitness to practise is impaired by reason of(i) misconduct,

(ii) lack of competence;

(iii) a conviction or caution in the UK for a criminal offence….(iv) his physical or mental health, (v) a determination by a body in the UK responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise is impaired; (b) [ fraudulent entry in the register]".

[25]The Rules define “allegation” by reference to Art. 22 (1) of the Order. They relate to how allegations are investigated, charged and determined. I have already referred to the provisions of R11(3) dealing with the notice of hearing. The notice of hearing must contain a “charge particularising the allegation, which shall set out any alleged facts on which it is based….” By R30, the NMC bears the burden of proving the disputed facts of an allegation. I accept from that, as a general proposition, that the required particularisation of the allegation by charges means that particulars which are not charged cannot be relied on in relation to the allegation of misconduct. Fairness and significance determines how far particulars need to be broken down in separate charges. There are obviously instances where specific notice is required, as in El-Baroudy, but there may be others were particulars are sufficiently precise to give proper notice, even though they could be broken down further. I also consider that there may be circumstances where the nature of the defence or of mitigation may make such conduct admissible without particularisation, as I come to. General propositions are not universal rules devoid of context or qualification.

[26]But Rules in relation to a conviction are different. Although a conviction is an allegation by reason of which fitness to practise may be impaired and it may lead to sanction, it is not as such an allegation of misconduct. A conviction is governed by R31. By R 31(2), a certified copy of the certificate of conviction is conclusive proof of the conviction; and “(b) the findings of fact upon which the conviction is based shall be admissible as proof of those facts”. It must be remembered that the allegation is that fitness to practise is impaired by reason of the allegations proved; here they are the misconduct proved, and the conviction. But the judgment as to whether a registrant is unfit to practise permits, and may require, a broader perspective. The same applies to the question of sanctions.

[27]Each of the latter two stages, whether in relation to misconduct or conviction, may be accompanied by further representations and evidence, as the focus of the issue is different from the finding of fact stage. When it comes to sanction, the Panel “may hear evidence from the parties as to any previous history or mitigating circumstances or other relevant factors which may affect the committee’s decision on the sanction, if any, to be imposed”, R24 (8) (12), and for sanction (13).

[28]As Mitting J commented in Nicolas-Pillai v GMC

[2009] EWHC 1948 (Admin)

[19], “…the attitude of the practitioner to the events which give rise to the specific allegations against him is in principle something which can be taken into account either in his favour or against him by the Panel both at the stage when it considers whether his fitness to practise is impaired and… sanction.”

[29]It is first necessary to consider the part which the contentious evidence played in the decisions of the Panel. This evidence was not treated by the Panel as relevant to any of the charges of misconduct, and it is difficult to see that it could be. Nor could it have been relevant to the finding that proof of those charges amounted to misconduct. It played no part in the proof of the fact of conviction, but that is not the end of the legitimate scope of its relevance in relation to conviction, as I shall come to.

[30]Indeed, Ms Hobcraft made her point more in relation to the issues of impairment and sanction where this material did play some part. The case presenter referred, as the Panel’s decision records, to the two witness statements, the first where the incident was described, and the second describing the mental, emotional and physical effects of his conduct on her. This was specifically referred to by the Panel in relation to impairment:

“The panel took into account Mr Kearsey’s criminal behaviour which related to physical violence against his then girlfriend. It noted the police reports which included the statement by the victim about the physical, emotional and mental harm his actions had caused her. Such behaviour would inevitably have brought the profession into disrepute. The panel considered that the conviction related to physical harm against an individual. As such, the panel concluded that there were wider public protection issues raised by this case.”

[31]In relation to sanction, the Panel referred to part of the case presenter's submission that an aggravating factor was that the conviction “involved sustained bullying behaviour which resulted in physical harm”. The Panel made no specific comment about that point, but realistically it must have been taken into account. So the contentious evidence was, I find, taken into account at the stages of considering impairment and sanction.

[32]The first problem, however, with Ms Hobcraft's submission is that it focused on the particularisation of misconduct, whereas the evidence at issue needs to be considered in relation to the conviction. It is clear that the evidence of conviction is not confined to the mere fact of conviction on the certificate. The findings of fact upon which the conviction is based are not in my view confined to the bare facts which prove guilt of the offence or its circumstances, but includes also those relevant to sentence, which, in context, is part of the conviction. This is illustrated by Nwogbo v GMC

[2012] EWHC 2666 (Admin)

in which HHJ Stephen Davie, sitting as a High Court Judge, considered an appeal by a doctor who had been convicted of assaulting his wife and then failing to notify various bodies of that conviction. The doctor submitted that the Panel ought not to have had regard to any circumstances surrounding the assault, beyond the fact of the conviction itself. The police officers had been called by the GMC to give the Panel the “fullest picture of the circumstances of and around the index offence and the information it needed to deal with the matter fully and fairly.” The Panel also had the Pre-Sentence Report. The Judge thought the Panel was entitled to have that information. I accept, as Ms Hobcraft pointed out, that that information, so far as one could see, did not include anything about any other offence, but it did give details of the assault and dwelt upon the registrant’s attitude towards his offending, denial and lack of remorse, from the date of the offence to the date of the Panel hearing. For present purposes, it is clear that the circumstances surrounding the offence, its details, and the information available at sentencing, was properly before the Panel.

[33]In my judgment, the nature of the relationship and the previous assault were before the Magistrates either at trial or on sentencing or both. Both were potentially relevant and admissible at trial, and must have been considered for the purpose of sentencing. I cannot accept, in view of the apparent defences of self-defence or that the assault did not happen, that the evidence which was given would have been as constrained as Ms Hobcraft speculated it might have been. It seems to me that the course of the relationship including the previous assault might well have been admitted under one or more parts of s101 of the Criminal Justice Act 2003, dealing with the defendant’s bad character, in order to prove the commission of the offence. His defence was rejected, so he lied on the Magistrates Court findings. Moreover, the various sentencing orders could only have been made if there was an evidential justification before the Court at some point, either as part of the trial evidence or as part of the sentencing background, which the Court found sufficiently proved to rely on for that purpose. The restraining order and the structured intervention to prevent domestic violence would have required evidence of the abusive relationship, and probably of more than a single isolated incident.

[34]There is no contrary evidence, and the registrant, who was in a position to know what had been before the Magistrates, has not sought to say this material was not before them. The NMC sent to the registrant the witness statements of the victim, which the registrant would have had from the trial itself anyway. The registrant made no protest or objection on this issue at any stage, as he so easily could have done. This material is therefore admissible under R31.

[35]This did not create unfairness for the registrant. Ms Hobcraft submitted that before bad character evidence was introduced to a court, an application would have to be made, and the ruling would consider the fairness of adducing it. Here, it just went in before the Panel, without such consideration. That is correct only up to a point. The material complained of was clearly relevant to impairment and sanction; that much would have been obvious to the registrant. He had all the evidence. He knew that it was going to be used in the disciplinary hearing. He could have objected to its admissibility and accuracy, even without attending, yet did not do so. There was no unfairness in this case in the evidence being considered at impartment and sanction stages. Even now he has provided no evidence after the Panel decision relevant to the Rules or unfairness, saying for example, that he did not realise the purpose of the evidence being given, or that it was not before the Magistrates. This case requires a factual base which it lacks.

[36]The fact that the earlier assault could have been charged as an act of misconduct does not mean that it had to be so charged, when it was part of a conviction allegation and not an allegation of misconduct. It would require an unduly blinkered approach, contrary to the purposes of the disciplinary process, if evidence before the criminal court, taken into account in the trial or sentencing process, were excluded from the disciplinary charge unless separately charged as misconduct. The issues which concerned HHJ Raynor do not arise in those circumstances. He was not dealing with this sort of case. There was no breach of any procedural rule or unfairness in the evidence being considered by the Panel for impairment and sanction.

[37]Had there been no conviction charge as part of the allegation of impairment, and merely an allegation of misconduct particularised as the assault on 4 July, I am not necessarily satisfied that the earlier assault could only be adduced in evidence, conformably with the Rules, if particularised as a charge. Such a restricted approach would exclude evidence which might otherwise be admissible to prove the assault on 4 July, for example in rebuttal of some defence, or as probative bad character evidence. It would exclude evidence of the relationship surrounding the assault. I see no reason why that would always have to be a separate particular of misconduct. The real question is whether it could fairly be admitted.

[38]I am not persuaded either that it could not be admissible in relation to impairment or sanction, if it was relevant and fair to do so, and depending on the circumstances. The Rules clearly contemplate that further evidence is admissible at those stages. Mitigation, for example, could make it relevant. It would still have to be proved, if disputed, though that might be an unnecessary distraction from the real focus of the hearing. In a criminal case at sentencing, evidence may be admitted which may have played no part in the trial; previous convictions are an example. The governing principle is not whether the conduct could have been charged, but whether its admission in evidence creates unfairness.

[39]If the Panel had been in error in that respect, however, I would not have allowed the appeal. The Panel would clearly have reached the same conclusion without it, as the rest of its reasoning on impairment shows the registrant’s fitness to practise was clearly impaired. I set it out:

“The panel considered there was no evidence before the panel that Mr Kearsey had any insight into his conviction or its wider implications on his victim and the reputation of the profession. The panel acknowledged that Mr Kearsey is recorded as accepting that, in hindsight, he should have notified the NMC and his employer about his conviction. However, it was unable to attribute his concession to Mr Kearsey having shown any insight into his conduct in respect of charges 2-4. Mr Kearsey has not engaged with the NMC throughout these proceedings. He dis-engaged with the Trust investigation following the investigatory interview held on 5 September where he gave Ms 1 a fabricated account of events in relation to his conviction. There was no evidence before the panel that he had undertaken any steps to remedy his failings in relation to his dishonesty, his conviction or the misconduct found proved in relation to charges 2-5. The panel concluded that Mr Kearsey’s conduct as found proved had, in the past brought the profession into disrepute, breached fundamental tents of the profession and that he had acted dishonestly. It recognised that dishonesty is difficult to remediate and concluded that, on the evidence before it, Mr Kearsey had not demonstrated any insight into the misconduct and/or the conviction or taken sufficient steps to assure the panel that he would not act in a similar manner in future. The panel therefore determined that there remains a real risk of repetition and the Mr Kearsey was liable, in the future, to bring the profession into disrepute, to breach fundamental tenets of the profession and to act dishonestly. Finally, the panel is satisfied that this is clear case where, in addressing current impairment, there is a need to declare and uphold proper professional standards, Public confidence in the nursing profession and in the NMC as its regulator would be severely undermined if a finding of impairment were not made.”

[40]The Panel’s decision, even if it contained an error, is not wrong.

[41]Were the Panel wrong, I could decide the issue myself but I would have reached the same decision on fitness to practise without that evidence for the reasons in the paragraphs set out immediately above, and in the light of the sentence orders which clearly point to a rather more serious offence, and attitude than the bare fact of conviction reveals. It is also clear that the reasoning on sanction, would have been the same; the Panel’s conclusion is not wrong, and anyway I would have reached the same conclusion even excluding that material. Ms Hobcraft made a separate point about the reasoning on sanction which I deal with next, where the Panel’s reasoning is set out.

The adequacy of the reasoning on sanction

[42]Ms Hobcraft’s contention was that the Panel had failed to give adequate reasons for its sanction decision as required by R24 (13). Reasons had to be sufficient for it to be clear why the Panel chose the sanction which it did and rejected others. Merely eliminating lesser sanctions was not of itself sufficient to demonstrate that the decision was proportionate. She submitted that there was no reasoning specific to registrant’s actual case.

[43]The case presenter specifically referred to the conviction as involving sustained bullying behaviour.

[44]The Panel said:

“In reaching its decision, the panel took account of the ISG and the need to protect the public, as well as the wider public interest. This includes maintaining public confidence in the profession and the NMC as the regulator, and declaring and upholding proper standards of conduct and behaviour. The panel has applied the principle of proportionality, weighing the interest of the public with Mr Kearsey’s interest, and has taken into account the mitigating and aggravating factors in this case. The Panel has borne in mind that the purpose of a sanction is not to be punitive, although it may have that effect.”

[45]It set out the aggravating and mitigation factors specific to the case. Aggravating factors were:• “Mr Kearsey’s criminal behaviour related to physical violence against another individual and the panel has found that there were wider public protection issues raised by this case;

• Mr Kearsey’s dishonesty involved a deliberate decision to give his employer a fabricated account of events which he knew to be misleading;

• There is no evidence of any understanding on Mr Kearsey’s part of the effect of his actions on his victim and on the reputation of the profession;

• Mr Kearsey has shown no remorse or regret for his conduct and there is no evidence of insight, reflection or remediation;

• Mr Kearsey disengaged from the Trust during the investigatory process and has not engaged with the NMC proceedings;

• The panel has found that there is a real risk of repetition in this case.”

[46]Mitigating factors included that there was no concern about the registrant’s clinical skills, “there was no direct patient harm. There were no material mitigating personal circumstances”. The Panel then went through each option for sanction, including imposing no sanction. I do not accept the submission that it did not deal with the specific circumstances of the case. It do not need to go through all the factors all over again; the Panel summarised the aggravating factors that were relevant to it, and its conclusion on sanctions has to be read with its findings on the facts and its conclusion on impairment.

[47]I do not need to set out what was said on imposing no sanction at all, a caution or a conditions of practice order. For the reasons given by the Panel those were not realistic options anyway.

[48]It said this on “suspension”, which illustrates the point which I have just made, about the evidence of the abusive relationship and sanction:

“The panel then went on to consider the sanction of suspension. It had careful regard to the ISG. The panel noted that Mr Kearsey’s conviction related to physical violence against another individual causing her physical, mental and emotional harm. Moreover, Mr Kearsey’s dishonesty involved a deliberate decision to conceal the true facts surrounding his conviction to his employer thus exacerbating the seriousness of the dishonesty in this case. He gave his employer a fabricated account of events, which he knew to be misleading in an attempt to lessen the seriousness of the conviction and therefore the potential professional consequences on him. The panel considered that, taken together, Mr Kearsey’s behaviour in relation to all the charges found proved was not compatible with Mr Kearsey’s obligation as a registered nurse. Mr Kearsey has not engaged with the regulatory process and there is no evidence that he has attempted to remediate his failings or any indication of his willingness to do so. Further, Mr Kearsey has provided no evidence of remorse, regret, or any meaningful insight into his behaviour. The panel considered the absence of any information from Mr Kearsey to be indicative of a persistent and sustained lack of insight into the seriousness of his behaviour and the wider implications on his victim and on the reputation of the profession. The panel was mindful of its decision on impairment that there was a real risk of repetition in this case and, as such, it did not consider that a suspension order was an appropriate sanction in this case.”

[49]Then, dealing with striking off, it did not just say that those conclusions left striking off as inevitable. It considered whether that was appropriate. First, it set out the relevant parts of the Interim Sanctions Guidance, ISG, including the questions of whether striking off was the only sanction which would be sufficient to protect the public, whether the seriousness of the case was incompatible with continuing registration, and with the maintenance of public confidence in the profession and the NMC as its regulator. The ISG advised that striking off was likely to be appropriate where behaviour was “fundamentally incompatible” with being a registered professional, which may involve any violent conduct such that the public interest can only be satisfied by removal, or dishonesty, especially where persistent or covered up, or persistent lack of insight into the seriousness of actions or consequences, or convictions involving any of that sort of conduct.

[50]The ISG and the Panel then referred to what Mitting J said in Parkinson v NMC

[2010] EWHC 1898 (Admin)

. “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.”

[51]Its reasoning on striking off specifically then followed:

“With this in mind, and having regard to the nature and seriousness of the misconduct in all the charges collectively, the panel concluded that a striking-off order is the only appropriate and proportionate sanction. The panel determined that a striking off order is the only order sufficient to protect the public and satisfy the wider public interest in this case. The panel concluded that, in these circumstances, the seriousness of Mr Kearsey’s behaviour was fundamentally incompatible with his ongoing registration as a nurse. The panel has not received any evidence regarding Mr Kearsey’s current employment or financial circumstances. However, taking full account of the important principle of proportionality, the panel was of the view that the interest of the public far outweigh his interests in this regard. The panel concluded that Mr Kearsey’s actions represented such a fundamental departure from the relevant standards, that public confidence in the nursing profession and in the NMC as its regulator would be undermined were the panel not to impose a striking-off order.”

[52]Ms Hobcraft suggested that ISG was going too far and fettered the Panel’s judgment. The ISG had effectively been superseded by Leggatt J in Hassan v General Optical Council

[2013] EWHC 1887 (Admin)

, in which Parkinson was cited. The sanctions guidance of the GOC, as cited, is not materially different from the NMC’s ISG. The GOC’s legal adviser had however referred its Committee to Solicitors Regulatory Authority v Sharma

[2010] EWHC 2022 (Admin)

, D.Ct, which said:

“save in exceptional circumstances findings of dishonesty would led to a striking off, but there was a small residual category where striking off would be a disproportionate sentence…[bearing in mind the] nature, scope and the extent of the dishonesty, its duration, who benefited and its adverse effect”

. It was argued that that should not have been applied to dishonest optometrists. At [37] Leggatt J distinguished Sharma from Parkinson, saying that there might be a fairly fine line between the two strands but it was not insignificant. Sharma was the case referred to by the GOC, and Parkinson was not in the guidance of the GOC nor was it referred to. Sharma had introduced “an improper qualification or restriction on the guidance” from the GOC. There were differences between optometrists and solicitors relevant to the approach to sanctions. In relation to a dishonest optometrist, Leggat J concluded that it was wrong to introduce a presumption in favour of striking off for dishonesty save where exceptional circumstances were shown, which fell into a small residual category of cases. Parkinson, submitted Ms Hobcraft, fell into the same error.

[53]I disagree. To Leggatt J, the crucial point in Hassan was that the guidance in Sharma did not appear in the optometrists’ sanctions guidance. But here Parkinson is referred to in the ISG, so there was no failure to apply the correct guidance. Besides, Parkinson is different in effect from Sharma, and Parkinson cannot be objected to in the context of the NMC, as applying a solicitor’s standard, or some other inappropriate standard, to nurses and midwives.

[54]Ms Hobcraft’s final point on the adequacy of reasons on sanctions was the asserted uncertainty about what the Panel meant by its phrase:

“protect the public and satisfy the wider public interest in this case”, which it used twice in this context, and reflects the “wider public protection issues” referred to as part of the first aggravating factor it found, a phrase also used without greater specificity in relation to impairment of fitness to practise. The Panel also found that there was a real risk of repetition, without saying of quite which or all of the various aggravating factors. She pointed out that the Panel had found that the registrant was not deficient in nursing skills and had caused no “direct patient harm”

. The Panel had also found in relation to impairment that “no issue arises as to patient safety. As such the panel did not consider that Mr Kearsey had acted so as to put patients at unwarranted risk of harm.” She submitted that it was not clear therefore to what that language referred: was the Panel saying that there was a danger to patients or colleagues from assault or bullying? Mr Cassells submitted, not without some uncertainty it seemed to me, that that is exactly what the Panel was referring to.

[55]I conclude that if the Panel had meant that it feared that the registrant would repeat violent and bullying behaviour but do so for the first time towards patients or colleagues, it would have said so, and would have had to explain that in view of its earlier comments and the apparent absence of any evidential basis for that conclusion, beyond the fact of conviction arising out of domestic violence. What it meant, in my judgment, was that his behaviour had already brought the profession into disrepute through his violence and bullying actions towards his girlfriend, his non-disclosure of it and his dishonesty about it. Nurses are expected and trusted not to behave like that. When considering impairment, after using the phrase about wider public protection; the Panel then went on to consider those wider public protection issues. He had been convicted of violence; he had no insight and had shown no remorse; he had not disclosed it when he should have done; he had lied about it; there was a real risk of repetition of all or any of those, and public confidence in profession would be severely undermined if a finding of impairment were not made. He was an “extremely untrustworthy individual.” That reflects the approach adopted in relation to sanction where the same and similar phrases appear. The Panel took account of the need to protect the public and wider public interest which included maintaining public confidence in the profession and regulator. In summary the wider public interest covers the same points. The decision is very much in line with the ISG and Parkinson.

[56]Even were there some uncertainty about the reasoning, I would not quash the order. Even if the Panel had meant what Mr Cassells suggested, and that had not been justified, or if the thinking was legally inadequate, I am sure that the Panel would have reached the same decision anyway. I have the power to reach the decision. Had it been necessary for me to decide, I would have come to the same conclusion on sanction, and I would not have remitted it. There was a risk of that sort of behaviour recurring to a person with whom he entered into a domestic relationship, and a risk of further conviction, and further damage to the reputation of the profession. There was also the risk of repeated non-disclosure or dishonesty about that, or about other disciplinary incidents or when something went wrong. He was, I repeat, found to be an “extremely untrustworthy individual.” The Appellant had not suggested that it was a one off incident, or shown insight or remorse, or how he would try to avoid this problem in the future. The reputation of the profession, the public’s trust in the profession, and its disciplinary processes would be undermined if, as a registered nurse, it all happened again or anything like it. Striking off was all but inevitable in his case on the findings, and in the absence of any evidence from the registrant, as Parkinson advised.

Conclusion

[57]Ms Hobcraft put Mr Kearsey’s case with skill but his appeal is dismissed.