Mirtorabi v Nursing And Midwifery Council [2017] EWHC 476 (Admin)

[2017] EWHC 476 (Admin)Case No CO/3978/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13 March 2017
Before
MRS JUSTICE LANG DBE
Between
FARIBA MIRTORABIAppellantTHE NURSING AND MIDWIFERY COUNCILRespondent
Briony Molyneux (instructed by the Legal Services Directorate of the Royal College of Nursing) for AppellantSamantha Forsyth (instructed by The Nursing and Midwifery Council) for RespondentHearing Hearing date: 1 March 2017
Judgment ApprovedMrs Justice Lang :
[1]The Appellant appeals under Article 38 of the Nursing and Midwifery Order 2001 (“the NMC Order”) against the decision of the Conduct and Competence Committee (“the CCC”) of the Nursing and Midwifery Council (“NMC”), confirmed in writing on 11 July 2016, to strike her off the register of nurses.

Proceedings before the CCC

[2]The charges against the Appellant, a registered nurse, arose from incidents which occurred between 25 November 2014 and 13 December 2014 whilst she was employed as an agency nurse at a care home.[3]The case was heard by the CCC over four days between 4 and 7 July 2016. The Appellant was legally represented by Ms Molyneux. The Appellant gave evidence at the facts stage. Oral evidence was heard from three other witnesses and two witness statements were read. Charges[4]The charges, and the CCC’s findings, were as follows: “That you, whilst working as a nurse through Superior Care (“The Agency”) at Westbrook House (“the Home”): 1. On the night of 25 November 2014, and in relation to Resident A,(a) Failed to administer the Resident’s 0.4ml Clexane injection; Admitted and found proved(b) Did not record your reasons for not administering the Resident’s 0.4ml Clexane injection on the Resident’s Medication Administration Record. Admitted and found proved 2. On or about the night of 26 November 2014 incorrectly transcribed the medication time(s) for Resident B’s Medication Administration Record for Cetirizine. Found Proved 3. On 3 December 2014 at 13:00 administered 10mg of Cetirizine to Resident B when a 10mg dose of Cetirizine had already been administered to Resident B at 08:00. Not found proved 4. On 13 December 2014 failed to sign the controlled drug book following the administration of 10mg [of] Zomorph MR to Resident C. Admitted and found proved And, in light of the above, your fitness to practice is impaired by reason of your misconduct”. (a) Failed to administer the Resident’s 0.4ml Clexane injection; (b) Did not record your reasons for not administering the Resident’s 0.4ml Clexane injection on the Resident’s Medication Administration Record. Found Proved Not found proved Admitted and found proved Misconduct

Admitted and found proved

[5]The CCC rejected the Appellant’s submission that the three charges proved fell short of “misconduct” for the purposes of Article 22(1)(a)(i) of the NMC Order. The CCC found that she had breached “The Code: Standards of conduct, performance and ethics for nurses and midwives” and the NMC’s guidance document “Standards for medicines management”.[6]On charge 1, the CCC found that Resident A was put at risk of deep vein thrombosis and pulmonary embolism (though fortunately did not suffer any harm) by her failure to administer Clexane and continuity of care was undermined because she did not record that the medicine was not administered.[7]On charge 2, the CCC found that, as a result of her failure to transcribe the medication times correctly, Resident B was administered Cetirizine up to four times a day instead of once a day, over a period of four days. It was fortuitous that Resident B did not suffer any harm, as there were many medications where an overdose of comparable quantity could have serious consequences.[8]In respect of charges 1 and 2, the CCC determined that her “actions and omissions would be viewed as deplorable by fellow professionals and constituted sufficiently serious departures from the standards of a registered nurse as to amount to misconduct”.[9]On charge 4, the Appellant failed to comply with her duty to sign the controlled drugs book after administering medication to Resident C. The CCC said:
“The panel had in mind that in isolation, this error might not be so serious as to amount to misconduct. However, your failure occurred in the context of previous medication administration errors and resultant extra training and assessment, just days before this event and the day after you had given an assurance that you would be extra vigilant in relation to mediation administration, as is recorded in the safeguarding investigation report dated 12 December 2014. As a consequence of the above, the panel determined that your failure to sign the controlled drugs book constitutes a sufficiently serious departure from the standards expected of a Registered Nurse as to amount to misconduct.”
Impairment[10]The CCC went on to hear submissions and consider whether the Appellant’s fitness to practise was impaired. The Appellant chose not to give any further evidence at the impairment stage but she admitted that her fitness to practise was currently impaired by reason of her misconduct and she provided a reflective essay and a reference.[11]Ms Molyneux agreed that the CCC was entitled to see the Appellant’s previous regulatory history with the NMC and an agreed note was produced by the NMC.[12]On 1 November 2013, the CCC had suspended her registration for six months, after finding the following charges proved:
“Whilst employed as a registered nurse by Charing Health Care based at St Michael’s Care Home: 1. On 12 February 2011: (a) Accepted delivery of a controlled drug, Zomorph, without checking the amount of medication being delivered; (b) Did not enter the amount of Zomorph tablets delivered on to the controlled drugs register. 2. On 17 May 2011, asked Colleague A, who is not a registered nurse, to sign the controlled drugs register. 3. Between 14 December 2010 and 9 June 2011, did not inform Charing Health Care that you had made a self referral to the NMC in September 2010 and that you were being investigated by the NMC. 4. In or around 14 December 2010, when completing an application form for the role of a registered nurse at St Michael’s Care Home, did not include details of your previous employment with East Kent Hospitals NHS Foundation Trust. 5. Your conduct in respect of charge 4 was dishonest. And, in light of the above, your fitness to practise is impaired by reason of your misconduct.”
[13]On 28 January 2016, the CCC imposed a Conditions of Practice Order (“CoP Order”) on her registration for a period of two years, which remained in force, though it was not in force in 2014 when the current charges arose. The NMC presenter erroneously told the CCC that the CoP Order had been made on 14 August 2015, and this error was only noticed on appeal. The charges found proved were as follows:
“That you whilst employed as a Registered Nurse at Signature Miramar Care Home: 1. On 24 September 2013, slept whilst on duty; 2. On 24 October 2013, in relation to Resident A, administered and/or caused to be administered crushed medication when no covert medication policy was in place; And, in light of the above your fitness to practise was found to be impaired by reason of your misconduct.”
[14]After considering all the relevant factors, the CCC found that the Appellant’s fitness to practise was impaired, stating:
“In the panel’s judgment, at this time the likelihood that your misconduct will be repeated is very high. Your insight is limited. Your reflection suggests that you still do not accept full personal and professional accountability. Your misconduct involved errors of a similar nature to those previously found proved and amounts to misconduct repeated over a significant period of time.”
[15]The CCC concluded that public confidence in the profession would be undermined if a finding of impairment was not made in this case. Sanction[16]The CCC heard submissions on sanction and applied the Indicative Sanctions Guidance (“ISG”). The CCC concluded that a CoP Order or Suspension Order would not be sufficient. It said: “The ISG makes clear that a Striking-off Order is the appropriate sanction where the behaviour is fundamentally incompatible with being a registered nurse and where the behaviour involves any of the following:• serious departures from the relevant professional standards;• persistent lack of insight into seriousness of actions or consequences. In the panel’s judgment, these features are all present in this case and a Striking-off Order is needed to protect the public interest. In the panel’s view there is also no real likelihood of your practising as a safe nurse in the foreseeable future. A vital consideration for the panel was whether the case required a Striking-off Order or whether applying proportionality, public confidence could be maintained by imposing a lesser sanction. In the panel’s judgment for all of the above reasons, the only proportionate and appropriate sanction in this case, sufficient to protect the public and maintain confidence in the profession, is a Striking-off Order.”• serious departures from the relevant professional standards;• persistent lack of insight into seriousness of actions or consequences.

Legal framework

[17]The appeal was brought under Articles 29(9) and 38 of the Nursing and Midwifery Order 2001. By CPR PD52D.19.1(2), such appeals are by way of re-hearing. However, “it is a re-hearing without hearing again the evidence”, as Foskett J. explained in Fish v General Medical Council [2012] EWHC 1269 (Admin), at [28].[18]CPR Rule 52.11 provides, so far as is material: “Hearing of appeals 52.11 (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.” (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.[19]The approach to be taken by an appellate court to professional regulatory appeals has been comprehensively considered in a series of appeals from the General Medical Council (“GMC”).[20]In Meadow v General Medical Council [2007] QB 462, Auld LJ said at [197]:
“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.”
[21]In Raschid v General Medical Council [2007] 1 WLR 1460, which was an appeal against sanction, Laws LJ said, after reviewing the authorities, at [19] – [20]:
“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.” “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.”
[22]Laws LJ concluded that the court should not carry out “an exercise in re-sentencing” (at [21]) nor substitute “one view of the merits for another” (at [22]).[23]In Ghosh, the Privy Council confirmed that this approach gave effect to the appellant’s rights under Article 6 of the European Convention on Human Rights.

Grounds of appeal

[24]The Appellant’s pleaded grounds of appeal were as follows:
“That the Conduct and Competence Committee erred in law and otherwise acted wrongly and/or unjustly in their determination that the only proportionate sanction to be applied to the Appellant in all of the circumstances was that she be struck from the Register when: a. The Committee placed undue reliance/consideration on previous referrals. b. There were lesser sanctions which were proportionate in all of the circumstances.” a. The Committee placed undue reliance/consideration on previous referrals. b. There were lesser sanctions which were proportionate in all of the circumstances.”

Conclusions

[25]The Appellant did not, and indeed could not, argue that the CCC was not entitled to have regard to the Appellant’s regulatory history when it was considering whether her fitness to practise was impaired and the appropriate sanction. Ms Molyneux conceded at the CCC hearing that it was appropriate to do so. Rule 24(13)(c) of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 provides that the Committee may hear evidence as to any previous history when considering sanction. The ISG lists “any previous regulatory or disciplinary findings” as an aggravating factor, at paragraph 25, together with “lack of insight into failings” and “a pattern of misconduct over a period of time”.[26]The Appellant’s complaint was that the CCC gave the previous disciplinary decisions too much weight and they led to a more unfavourable assessment of her conduct than would otherwise have been the case. In my judgment, the CCC was entitled to take the previous disciplinary decisions into account in the way in which they did when assessing the extent of the Appellant’s impairment and the appropriate sanction. The CCC rightly focussed on the key issues of whether the Appellant’s misconduct was remediable and the likelihood of any repetition. Her history of misconduct was directly relevant to those issues. Having heard her give oral evidence and having read her written reflections, the CCC concluded that she had limited insight, did not take full responsibility for her errors, and repeatedly made serious errors which were of particular concern because she was caring for vulnerable nursing home residents. The previous disciplinary charges included errors similar in nature to those currently before the CCC, in connection with the management and administration of drugs. The CCC was justified in concluding that there was a pattern of misconduct, beginning in 2010 shortly after she qualified, and which continued to late 2014. Despite the various internal and NMC proceedings which she had undergone, she had not been able or willing to remediate her conduct. The CCC was entitled to be gravely concerned about her ability to respond appropriately to further training and supervision, noting that charge 4 occurred just after she had been given additional training and given an assurance that she would be extra-vigilant in relation to medication administration.[27]The Appellant submitted that the panel held the previous dishonesty charge against her in an inappropriate way when it said, in its decision on impairment: “The panel was concerned that you were slow to give it full information about your employment history as a registered nurse. It noted that in the past you have been found to have acted dishonestly in relation to not reporting full details of previous employment during an application for employment as a registered nurse”.[28]I agree with the Respondent’s submission that the CCC did not find that she was acting dishonestly at this hearing. In relation to the facts of the allegations, it had found her to be “confused, inconsistent, and hesitant but not deliberately evasive”. However, the CCC was entitled to take into account that she had a past history of not making full disclosure about her employment history when assessing her failure to give clear and prompt instructions to her representative about her employment history at the hearing.[29]In reaching its conclusions on sanction, the CCC correctly directed itself in law, and applied the guidance in the ISG. The CCC expressly stated that it “applied the principle of proportionality, balancing the interests of the public with your own interests in being allowed to continue practising as a Registered Nurse”. It correctly directed itself that it had to impose the least restrictive sanction necessary to maintain standards in the profession and public confidence in the profession and the NMC as its regulator. The CCC was aware that the purpose of imposing a sanction was not to be punitive although the sanction may have a punitive effect.[30]The Appellant submitted that these were relatively minor charges. However, it is apparent from the CCC’s decision on misconduct that it considered that the charges were serious and potentially harmful to patients. In my view, on the evidence it was entitled to do so. The CCC identified the relevant aggravating and mitigating features of the case fairly and appropriately. In accordance with the ISG, it then considered the sanctions in turn, beginning with the least serious. It rejected Ms Molyneux’s submission that a CoP Order would be the appropriate sanction for the following reasons:
“…..misconduct arising from medication administration and record keeping failing is one which could be remedied by training and supervision. However, this requires the registrant to be willing and, critically, to be capable of responding appropriately to training and supervision. You have demonstrated a commitment to the profession and a degree of willingness to undergo further training by attending courses intended to address your medication and recording errors. However, you have not been able to demonstrate that you have addressed your misconduct by practising safely since the incidents that are the subject of this hearing because you have not worked as a Registered Nurse since then. Although the present Conditions of Practice are said to have dissuaded employers from employing you as a Registered Nurse, public protection would demand that there could be no relaxation in the Conditions. Notwithstanding this, the panel was gravely concerned about your ability to respond appropriately to further training and supervision because of the now longstanding and sustained pattern of misconduct of a similar nature. The last error which led to this hearing occurred despite extra training and assessment, just days before and the day after you had given an assurance that you would be extra vigilant. For all of the above reasons the panel concluded that a Conditions of Practice Order would be insufficient to protect the public and maintain public confidence in the profession and the regulatory process.”
[31]In my judgment, the reasons which the CCC gave for not imposing a further CoP were justified. I do not consider it would have made any difference if the CCC had been informed of the correct date of the CoP Order. The fact that the Appellant had been unable to find employment as a nurse, since December 2015, because of the referrals to the NMC and the CoP Order, was not a point in her favour, as it meant that she had not been able to demonstrate any remediation and was at risk of becoming de-skilled. Both the previous CCC panel and this CCC panel considered that the stringent terms of the CoP Order, requiring supervision and monitoring in the workplace, were necessary for public protection.[32]The CCC considered the guidance in the ISG as to the circumstances in which a suspension order would be appropriate. It concluded that a suspension order would not be appropriate in this case since:
“….this is not a single instance of misconduct. Although there is no evidence of a repeat since the incidents in this case, you have not worked as a Registered Nurse since then and there is a pattern of repetition dating back to shortly after you qualified, namely three occasions of similar misconduct in quite quick succession ….The panel is concerned at the level of your insight and that you continue to not fully accept your accountability. The panel is of the view that you demonstrate an attitudinal problem to your accountability. There is a very high risk of repetition. In these circumstances, a Suspension Order, even if imposed for the maximum period allowed would be insufficient to protect the public, maintain standards of professional conduct and uphold public confidence in the profession and the regulatory process.”
[33]In my judgment, the CCC was entitled to reach these conclusions, in the exercise of its judgment.[34]The CCC then gave careful consideration to the circumstances in which a Striking-off Order is the appropriate sanction, according to the guidance in the ISG. It concluded that the Appellant’s serious departures from professional standards and persistent lack of insight into the seriousness of her actions and consequences meant that a Striking-off Order was needed to protect the public interest. The CCC concluded that there was no real likelihood of her practising as a safe nurse in the foreseeable future.[35]The CCC correctly applied the principle of proportionality, referring to it at the beginning of its considerations on sanction and then concluding:
“In coming to this conclusion, the panel applied the principle of proportionality. It balanced your interests in being able to continue in your chosen career and the possible effect on you of a Striking-Off Order with the need to protect the public and maintain public confidence in the profession. Notwithstanding how this decision may affect you, the panel found your interests were outweighed by the public interest.”
[36]I consider that the CCC was entitled to conclude, in the exercise of its judgment, that it was proportionate to strike the Appellant from the register, for the reasons which it gave.[37]In conclusion, the Appellant has failed to establish that the CCC’s decision was wrong, and the appeal must be dismissed.