Okpara v Nursing and Midwifery Council [2016] EWHC 1058 (QB)

Case No CO/6057/2015[2016] EWHC 1058 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/05/2016
Before
MR JUSTICE WARBY
Between
Victoria Mdubuaku OkparaAppellantNursing and Midwifery CouncilRespondent
The Claimant in person (assisted by Daniel Ibekwe, “McKenzie” friend) for in personAja Hall (in-house Counsel) for RespondentHearing Hearing date: 4 May 2016
JudgmentMr Justice Warby :Introduction
[1]This is an appeal from a decision of the Conduct and Competence Committee (CCC) of the Nursing and Midwifery Council (the Council). The Council has statutory responsibility for the regulation of nurses and midwives in the United Kingdom. The appellant was, until the events giving rise to this appeal, a registered nurse subject to the Council’s regulatory jurisdiction. She worked as a staff nurse at Guys and St Thomas NHS Foundation Trust (Guys), and subsequently at the Imperial Healthcare NHS Trust (Imperial). She appeals against a decision made by the CCC on 10 November 2015 to order that her name be struck off the register.[2]The background, briefly summarised, is that proceedings alleging impairment of the appellant’s fitness to practice were brought by the Council in 2014. There were in essence two allegations:(1) that whilst employed at Guys between 2009 and 2012 she failed to demonstrate competence in the administration of poly-pharmacy medication; and(2) that in a job application of March 2013 seeking employment with Imperial she falsely and dishonestly represented that she had competence in that area. After 7 days of hearing in March and May 2015, the CCC delivered a written decision in which it found all charges proved. It imposed a suspension order of 6 months duration.[3]A review hearing took place before a different Panel of the CCC on 6 November 2015, towards the end of the period of suspension. The appellant submitted that the period of suspension should be extended to enable her to address in full the recommendations which had been made in the May 2015 decision. The review Panel declined to do that. It concluded, in the light of the first Panel’s findings and the further information then available to the Panel, that an order striking off the appellant was the only proportionate response to her behaviour. She now contends that the review Panel was wrong to reject her application for the continuation of her suspension, and that it imposed a sanction which was beyond its powers, disproportionate, excessive and wrong.

The appellate function

[4]The appeal is brought pursuant to Articles 29(9) and 38 of the Nursing and Midwifery Order 2001, as amended (the Order). Such an appeal is available as of right; there is no need for permission. Otherwise, it falls to be dealt with in accordance with CPR Part 52. The appeal is by way of re-hearing, but unless the court orders otherwise it will not receive oral evidence, or any evidence which was not before the lower court or, in this case, Panel: CPR 52.11(2). The grounds for allowing an appeal are that the decision of the Panel was wrong, or unjust because of a serious procedural or other irregularity: CPR 52.11(3).[5]The proper approach to appeals of this nature has been considered on a number of occasions, and is now clearly defined and well understood within the medical professions. The following key principles can be derived from the main authorities, which principally concern the General Medical Council (GMC) but are of equal application in the present context:(1) The appeal is by way of rehearing. It is not confined to a point of law, but nor is it a hearing of the kind where the court hears the witnesses giving evidence again. In reality it involves a review of the evidence and material before the Panel in accordance with the parameters set out in Gupta v GMC [2002] 1WLR 1691 and Ghosh v GMC [2001] 1 WLR 1915.(2) In relation to findings of fact, the court is entitled to exercise its own judgment on whether the evidence supported such findings. However it will not interfere with a decision unless persuaded that it was wrong.(3) In considering whether that is so, deference will be shown to the professional knowledge and judgment of the Committee, where and to the extent appropriate. The degree of deference that should be shown will depend on the nature of the issue. There may be issues on which the court is as well placed as the first instance tribunal to make a judgment. But on some issues the first instance tribunal will have advantages.(4) The Court will recognise that the first instance body will often be at a significant advantage in assessing witness evidence, including that of a registrant. And in relation to findings which reflect a professional judgment concerning standards of professional practice and conduct the court will exercise distinctly secondary judgment. It will give special respect to the judgment of the professional body as the specialist tribunal entrusted with the maintenance of the standards of the profession.(5) Where the sanction of striking off is imposed, the court will consider whether the reasons given justify that sanction, again giving special respect to the judgment of the professional body. See in particular Meadow v GMC [2006] EWCA Civ 1390, Fatnami and Raschid v GMC [2007] EWCA Civ 46 [20] (Laws LJ), Sheill v GMC [2008] EWHC 2967(Admin) [12-13] (Foskett J), and Cheatle v GMC [2009] EWHC 645 [12-15] (Cranston J).

Issues

[6]In the proceedings before the CCC the appellant had the assistance of solicitors, Messrs Kirkpatricks, and was represented by Mr Daniel Ibekwe. On this appeal she represents herself, with the help of Mr Ibekwe as McKenzie friend. She has filed Grounds of Appeal and a Skeleton Argument which appear to be of her own devising, perhaps with some help. Although not a lawyer, her points have emerged clearly enough in those documents and in her oral submissions, for both of which she is to be commended.[7]At this hearing the appellant has accepted my analysis of her main grounds of appeal, of which there are five. She contends that the CCC:(1) failed to give proper consideration to her application for an extension of the suspension order;(2) acted in excess of its powers, in breach of its rules, irrationally, or otherwise unlawfully by imposing a striking off order when the original CCC had considered that a disproportionate sanction, and nothing had happened in the meantime to justify the more severe approach;(3) failed to have regard to the relevant considerations that she had practised without restrictions on her registration between the initial allegations and March 2015; that the condition imposed on her practice at that time was effective; and that there had been no further allegations of incompetence or dishonesty;(4) imposed a sanction which represented an unlawful interference with her rights under Article 8 of the Convention, as it was unnecessary in pursuit of the need to protect public health or any other recognised head of public interest, or disproportionate to any such need;(5) acted unfairly and in breach of her rights under Article 6 of the Convention.

The factual background

[8]Between 1 October 2001 and her resignation on 18 October 2012 the appellant was employed as a Band 5 staff nurse at Guys. From March 2004 she worked on Hillyers ward, looking after patients with a variety of medical conditions including specialist dermatology and HIV care. A patient’s relative complained about the appellant. For a period of four weeks she underwent an informal capability process to assess her ability to administer medication and deliver basic patient care. At the end of this process concerns persisted about all these matters, resulting in a two week extension of the assessment period.[9]After a meeting on 9 September 2009 the Trust’s formal capability procedure was initiated. On 1 October 2009 the appellant was transferred to Albert ward for five weeks to allow her to receive support and to meet the objectives set for her. At a review meeting on 17 November 2009 some improvement in certain areas was noted, but there were three remaining areas of concern: administering medication; recognising a deteriorating patient and responding appropriately; and prioritising workloads for a group of patients. The appellant was told that her overall standard of work was not at the level required for a Band 5 nurse. She was given a week to decide if she wished to remain in post or work elsewhere. She decided to remain and to proceed with the second stage of the capability process.[10]A capability hearing was held nine months later, on 24 August 2010. It concluded that there had been some improvement in the three areas mentioned, but not enough for the appellant to be deemed competent. It was decided to extend the capability procedure for a further three months. The appellant was told that in the absence of improvements the Trust would have to move to the final stage of the capability procedure.[11]Five months later, on 1 February 2011, the appellant attended a formal capability review meeting. It concluded that she had failed to meet the time management and planning care objectives. Although the process of administering medication had been assessed as safe, she was considered not to have demonstrated consistently an ability to apply her drug knowledge, or safe clinical decision making. From 7 February 2011 the appellant was subjected to a final four weeks of intense observation with measurable objectives that she could only pass or fail. She was told that the possible outcomes of failure were redeployment, downgrading, or dismissal.[12]The appellant was observed working on the wards with a full patient workload. She was assessed as having failed the first two formal drugs rounds. She did not attempt the third, as it was deemed too stressful for her. At the review meeting on 8 June 2011 there was an outstanding area of concern: poly pharmacy medication administration. The assessors reported that she continued to make mistakes, and was unable to demonstrate that she could prioritise other work whilst conducting a drug round. This was considered unsafe for patients and detrimental to the team, due to the additional burden placed on other team members. She was offered redeployment to a Band 4 post. She appealed this decision unsuccessfully. She resigned on 18 October 2012. Some 12 months later the Trust referred her to the Council.[13]In the meantime, the appellant had applied for a nursing role at Imperial and, on 3 June 2013, secured employment in a Band 5 role. The Council later notified Imperial of the referral and it undertook an investigation. This concluded that the appellant had failed to inform Imperial of the capability hearing at Guys, and that she had provided false information on her application form to Imperial.

The charges

[14]The appellant faced three charges, framed in this way:
“That you, whilst employed as a Band 5 Staff Nurse by [Guys] … while the subject of performance management and/or undergoing periods of supervised practise failed to demonstrate the standards of knowledge, skill and judgment required to practise as a band 5 Staff Nurse in that … 1. Between 4 June 2009 and 18 October 2012 you failed to demonstrate the required skills in … the administration of poly pharmacy medication That you, a nurse 2. In an application form for the position of a Band 5 Nurse in medicine at [Imperial] in March 2013 … stated in the application form ‘I am competent in the administration of medications through various routes … as it has formed a large part of my nursing practice over the past 10 years 3. Your actions in charge 2 above were dishonest in that you were misrepresenting that you were competent to administer medication when you knew that you were not able to demonstrate the safe administration of poly pharmacy between 4 June 2009 and 1 October 2012 during your previous employment at [Guys].”
That you, a nurse

The initial CCC proceedings

[15]The appellant denied all the charges, and a hearing took place over four days in March 2015 and a further three days in early May 2015. The CCC heard oral evidence from seven witnesses on behalf of the Respondent. The appellant gave evidence.[16]On 13 May 2015 the CCC gave its decision, in a detailed 24-page letter. It found all the charges proved, and concluded that the appellant’s fitness to practice was impaired. The CCC’s decision contained these conclusions:- “The Panel decided that you had brought the profession into disrepute. The public would rightly expect that nurses act so as to preserve the health and safety of those in their care. By failing to demonstrate your competency in poly pharmacy administration, you undermined the trust that your patients had in you as their care provider. Furthermore, your dishonesty in misrepresenting yourself to Imperial Healthcare NHS Trust brought the reputation of the profession into disrepute. Nurses are expected to act honestly and with integrity at all times, this includes matters of their employment. Honesty and integrity are fundamental tenets of the nursing profession. You failed to adhere to these tenets when you misrepresented yourself on your application form for a position at Imperial Healthcare NHS Trust. Your dishonesty was further compounded by the fact that you continued to misrepresent yourself and provide false information when you were interviewed by Imperial Healthcare NHS Trust. Your behaviour undermines the trust and confidence the public has in the profession. The misconduct and lack of competence that this Panel has found is so serious that a finding of current impairment must be made to uphold public confidence in the profession. For all the reasons thus far, the Panel concluded that you did not act in such a way as to justify the trust and confidence the public ought to have been able to have in you, nor did you uphold and enhance the good reputation of your profession. For all the reasons outlined above, the Panel has decided that your current fitness to practice is impaired by reason of your lack of competence and misconduct.”[17]None of this has been challenged by the appellant on this appeal. The CCC went on to consider sanction. It accepted the advice of its legal assessor who had referred the Panel to some of the guiding authorities in this area. “The Panel accepted the advice of the legal assessor. He referred the Panel to the case of Solicitors Regulation Authority v Sharma [2010] EWHC 2022 (Admin): ‘It was held that save in exceptional circumstances findings of dishonesty would lead to striking off. There was a small residual category where striking off would be a disproportionate sentence in all the circumstances.’ and that of Parkinson v NMC [2010] EWHC 1898 (Admin) which states: ‘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 direct erasure.’” ‘It was held that save in exceptional circumstances findings of dishonesty would lead to striking off. There was a small residual category where striking off would be a disproportionate sentence in all the circumstances.’ ‘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 direct erasure.’”[18]The Panel reminded itself that it was required to impose the least restrictive sanction necessary to protect the public, and to maintain public confidence in the profession and the Council as regulator, balancing these factors against the appellant’s interests. It considered the available sanctions in ascending order of severity. It rejected the idea that a conditions of practice order would be enough. It concluded however that a suspension order would be sufficient, and that a striking off order would be disproportionate.[19]The Panel made clear that it had come close to striking off. It stated that it considered the appellant had “shown limited evidence of insight, remorse and remediation and there remains a real risk of repetition”. But it concluded that “The misconduct found proved should be capable of remediation provided that insight is gained, reflection is undertaken and that the issue of misrepresenting yourself does not prove to be deep-seated.” The Panel explained what it had in mind:
“The Panel decided that a suspension order would give you an opportunity to reflect on your practice and demonstrate that you have achieved full insight and remediation …”
[20]As I shall explain, the Order provides for a suspension order to be reviewed. The Panel noted this in its decision, explaining that its order could be altered by a later review Panel:
“At the end of the period of suspension, another Panel will review the order, or it may confirm the order. At the review hearing that Panel may revoke the order, or it may replace the order with another order the Panel could have made today.”
[21]The Panel went on to give guidance to the appellant as to what might assist a review Panel in reaching a decision. It identified the following:
“Written evidence of training undertaken and how you have kept your knowledge and skills in relation to nursing up to date. This may include online or other courses, journals etc., particularly with reference to medicines administration A written essay/ (reflective piece) that includes: • Evidence of learning from the process you have experienced at the NMC as a result of the referral from the Trust. • Evidence that you have studied the new NMC “The Code- professional standards of practice and behaviour for nurses and midwives” 2015 and the “NMC Standards for medicines management” • Insight into the impact your dishonesty had on the public and the nursing profession • The potential impact your lack of competence regarding your medicine administration may have had on patients. • Written references or testimonials from people who know you well whether in a working environment or not. A reviewing Panel is likely to find testimonials from employers/line managers particularly helpful.” • Evidence of learning from the process you have experienced at the NMC as a result of the referral from the Trust. • Evidence that you have studied the new NMC “The Code- professional standards of practice and behaviour for nurses and midwives” 2015 and the “NMC Standards for medicines management” • Insight into the impact your dishonesty had on the public and the nursing profession • The potential impact your lack of competence regarding your medicine administration may have had on patients. • Written references or testimonials from people who know you well whether in a working environment or not. A reviewing Panel is likely to find testimonials from employers/line managers particularly helpful.”
[22]The formal suspension did not take effect for 28 days after it was pronounced, but an interim suspension was imposed meanwhile, without being contested. The appellant was therefore suspended from practice with effect from the CCC decision of May 2015. The review proceedings The regulatory framework

The review proceedings

[23]The Panel’s order was made under Article 29(5)(b) of the Order, which confers power to impose a suspension of up to one year. Article 30 of the Order requires a review of such an order before its expiry. Article 30(2) and (4) provide that the Committee which conducts the review has power to make (among other orders) a further suspension order, or a striking off order. There is a two-stage decision-making process, in which the first question is whether fitness to practice is impaired. If so, the Panel must go on to consider the appropriate sanction or order.[24]The Council’s Indicative Sanctions Guide (ISG) contains guidance on how this second stage should be undertaken. It provides, by paragraph 50, that a Panel should not allow a nurse to resume unrestricted practice unless satisfied that her fitness is no longer impaired. A non-exhaustive list of factors to be considered in making that decision is provided. Among the factors identified are whether the nurse has “successfully completed or complied with any conditions imposed”; whether she has “show[n] insight into their failings and the gravity of the misconduct”; and whether she has “taken effective steps to maintain their skills and knowledge.”[25]At paragraph 67, the ISG identifies factors of importance in deciding whether suspension is appropriate. The guidance indicates that this sanction is more likely to be appropriate where the misconduct is “not fundamentally incompatible” with continued registration, and identifies factors which may lead to that conclusion. The factors include “no evidence of harmful deep-seated personality or attitudinal problems” and “insight and .. [no] significant risk of repeating behaviour”.[26]Paragraph 70 of the ISG identifies, non-exhaustively, factors which may indicate that striking off is the appropriate sanction. The factors include “serious departure from the relevant professional standards”, “dishonesty” and “persistent lack of insight into seriousness of actions or consequences”.

The review hearing and decision

[27]A review hearing in respect of the appellant was set for 6 November 2015. Two days before that hearing, the appellant made a written application to the CCC via her solicitors seeking an extension of the suspension order for either six or twelve months. The purpose was to enable her (as she has put it in her appeal papers) to “completely meet” what the Panel had identified as appropriate in May 2015. The letter identified two problems: first, that she had found it very difficult to obtain a position or job which could provide supervision and/or monitoring for drug administration; secondly, that she had encountered difficulties in financing a return to practice course.[28]At the hearing, that application was renewed orally by Mr Ibekwe, who submitted that an extension of six months was needed “to allow us to obtain much of what has been set out”. He argued that the appellant needed to demonstrate consistency in drug administration, which required supervised employment. As to the reflective piece suggested by the Panel, it was argued that this could be produced but would not get the appellant far with the Panel because of “the other aspects”. Questioned about how far the appellant had got with the list of tasks identified by the Panel, Mr Ibekwe stated that the appellant could address the Panel on that. In the end, she did not do so. She did, however, submit references and a one-page document entitled “Reflections on my hearing at the [CCC]”. This contained her reflections on “issues raised at the hearing”, namely competence and dishonesty.[29]The review Panel, which sat in a different constitution from the one that made the May 2015 decision, declined to grant the appellant’s application for an extension of the suspension order. In a reserved decision sent to the appellant by post on 10 November 2015 the Panel first considered whether her fitness remained impaired. It gave detailed consideration to the history of the matter including in particular the findings and reasoning of the May 2015 Panel. It concluded that the appellant had been given “.. detailed and unambiguous guidance as to the steps you would need to take to demonstrate to a future Panel that you have remedied your lack of competence, and had reflected upon and developed insight into your dishonesty and its impact on patients and the reputation of the profession, notwithstanding the suspension of your registration.”[30]The review Panel assessed the appellant’s response to that guidance, and found it gravely deficient. The Panel said this:
“In the judgment of the Panel today, you could have been in no doubt as to what you needed to do in response. The position before the Panel today is that the Panel has been provided with no evidence of any steps you have taken to maintain your nursing knowledge and skills. You have provided some positive character references. However, there is nothing in them to suggest that the authors are aware of the findings made against you. You have submitted a written reflection. The Panel found the content deeply concerning for the following reasons. • You state “even though this issue with St Thomas NHS has caused me a lot of distress and devastation.”
You give no indication that you have recognised the risk to patients arising from your lack of competency in poly-pharmacy drug administration, which continued for a significant time despite extensive support, or the gravity of your dishonesty. You also state: “I feel it is of little use dwelling on the past but I prefer to think of the way forward.” • Whilst the Panel recognises the difficulties that arise from the suspension of your registration, the substantive Panel gave you clear guidance, and yet there is no information from you to suggest you have attempted to address your lack of competence, for example, by reading journals or undertaking on-line learning in accordance with the previous Panel’s suggestion. • There is nothing to indicate you have studied the current NMC Code of Conduct. • There is nothing to indicate what lessons, if any you have learned from the regulatory process. • There is no evidence of insight into the impact of your dishonesty had had on the public and on the nursing profession. It is clear from your written reflections that you do not appear to accept the previous Panel’s findings in relation to your dishonesty. You offer an apology but go on to insist that your actions were not intentional and assert that your misconduct was due to “miscommunications at the time”.[31]The Panel’s view was that it was not just a case of the appellant failing to do that which was expected of her. She had made things worse, by providing additional evidence that she lacked insight, and that there was a risk of repetition:
“In the Panel’s judgment, this new document provided fresh evidence of a worrying lack of insight on your part, leading it to conclude that your lack of insight is persistent and serious. There is no recognition of dishonesty on your part. This had potential consequences for the safety of patients and public confidence in the nursing profession. … Despite being given some six months to develop insight, you have produced a written reflection which minimises your culpability by insisting that your misconduct was not intentional and was due to miscommunication. Today’s Panel has been presented with new evidence regarding your lack of insight, which has increased the Panel’s concerns regarding the risk that you will repeat your misconduct.”
[32]The Panel was satisfied that the need to uphold proper standards and public confidence in the profession would be undermined if it did not make a finding of impairment. It went on to consider what further order if any was required. It addressed the available sanctions in ascending order of severity, applying the same principles as had been applied by the May 2015 Panel. In the course of this process it addressed the question of whether it should, as Mr Ibekwe had urged, extend the current suspension order. It noted that authority indicated that dishonesty would lead to striking off save in exceptional circumstances. Having evaluated the circumstances of this case it reached this conclusion:- “the only proportionate and appropriate sanction in this case, sufficient to protect the public, maintain public confidence, and declare and uphold proper stands of professional behaviour, is a striking off order.”[33]In reaching that conclusion the Panel bore in mind the appellant’s interests, the hardship likely to result, and the serious consequences for her finances and professional reputation. It concluded however that the public interest outweighed the interests of the appellant. The reasoning behind that conclusion was expressed by the Panel in this way:- “In the judgment of the Panel today, you have provided the Panel with fresh evidence which demonstrates a lack of insight into your failings and the gravity of your misconduct. You continue to deny your personal culpability. You have provided no evidence that you have taken steps to maintain your knowledge. You have not taken advantage of the opportunity afforded to you at the last hearing “to reflect on your conduct and the impact it had on patients and the nursing profession…and demonstrate that you have achieved full insight and remediation.” Applying the principles set out in the cases of Sharma and Parkinson, the Panel determined that extending the current suspension order would be insufficient to maintain public confidence and would be an inappropriate response at this time to the misconduct in the case. The Panel had regard to paragraphs 75.6 and 75.7 of the ISG which make clear that a striking-off order is appropriate in cases which involve dishonesty, and/or a persistent lack of insight into the seriousness of actions or consequences. In the Panel’s judgment, both factors apply to this case.”

Discussion

[34]I shall address the issues raised by this appeal in the order in which I have listed them above, attempting in the process to identify distinct points within each ground, where appropriate. (1) The decision not to extend suspension[35]In form, the ground of appeal is that the CCC declined to extend the suspension. In substance, however, the complaint under this ground is that the CCC refused to adjourn consideration of the appellant’s fitness to practice. The criticism is that the Panel should have given her more time to enable her to complete more of what the first Panel had indicated she should do, and thereby to demonstrate her fitness. This has been the main focus of the appellant’s oral submissions at the hearing of her appeal.[36]Whether to grant an adjournment or extra time is a discretionary decision. An appeal court will normally interfere only if there is some demonstrable error of principle, or a failure to take account of some material consideration. The fact that this appeal is a rehearing calls for some modification of the approach. But having looked at the issue independently I am quite satisfied that the Panel directed its mind to the issue. This is clear from the passages cited above. I am satisfied also that the Panel not only gave ample reasons but also had ample justification for declining the application for more time. In my judgment the Panel was right.[37]The appellant has expanded on what was said on her behalf to the review Panel. She tells me that she had made attempts to secure a post in which she could practice under supervision for the administration of medication. She had been working at the Willesden Centre before the suspension order, and had tried to get a place there afterwards. That had not borne fruit, because the Centre lacked the budget and because of her suspension. She reiterated that she had not been able to finance a return to practice course.[38]These points both seem to me to be misconceived. The Panel had not suggested that the appellant should practice as a nurse, administering medication under supervision. On the contrary, it had determined that she ought not to be allowed to do that, but should instead be suspended. She could not have obtained the position she says she sought. I also accept the submission of Ms Hall for the Council that there was no need for a return to practice course. That is only required after three years of not practising. That period will not be up until November 2016, three years after the appellant’s suspension by Imperial.[39]The appellant accepts that the review Panel correctly assessed the evidential position: apart from the references and the short reflective piece, she had not provided it with any evidence at all. The appellant’s arguments on this appeal have not persuaded me that this was a reasonable failure, or that she had any reasonable need for more time to deal with any of the issues listed by the Panel in May. Ms Hall points (as did the review Panel) to the May Panel’s suggestion of online learning as a means by which the appellant could demonstrate that she had kept her knowledge up to date. In reply, the appellant has told me that she tried to find online learning materials but none of relevance are available. That is disputed by the Council. It is not something that was said to the review Panel, and even now no evidence has been produced to substantiate the point. No explanation has been offered of why more time was needed to undertake, and produce evidence that she had undertaken, such tasks as studying journals or reading the Council’s Code of Conduct. Her reflective piece dealt only with the first of the May Panel’s five bullet points. The references dealt with the fifth, but the other bullet points were not addressed. (2) Imposition of excessive penalty in excess of power/breach of rules, irrationally or otherwise unlawfully[40]This ground contains more than one point. The first is, as I understand it, that the decision of the May Panel that striking off was disproportionate disentitled the review Panel from making such an order. This is a bad point. As noted above, the May Panel was right to advise the appellant that the review Panel could make a different order.[41]The second point is that the Order does not empower a review Panel to impose a striking off order on a registrant who has, as was the appellant’s position, been suspended for less than a year. That is misconceived. By Article 30(4) the power of a review Panel to replace a suspension order with a striking-off order is subject to Article 29(6). That Article does prohibit the making of a striking-off order “unless the person concerned had been continuously suspended, or subject to a conditions of practice order, for a period of not less than two years …” But this prohibition applies only to a striking off order “in respect of an allegation of the kind mentioned in Article 22(1)(a)[(ii), (iv) or (v)]”. The kinds of allegation mentioned there are lack of competence, physical or mental health, or findings of impaired fitness to practice made by other regulators. It is clear that a review Panel may make a striking-off order in respect of an allegation of dishonesty, or a criminal conviction, which are allegations listed in Article 22(1)(a)(i) and (iii). The finding of dishonesty against this appellant meant that the May Panel and the review Panel both had power to make a striking-off order. The review Panel did so on the grounds of dishonesty, coupled with other matters.[42]More generally, the appellant’s case is that even if the review Panel had the power to do so it was irrational, unlawful, or simply wrong to replace the suspension order with a striking-off order when the CCC had concluded in May 2015 that striking off was not necessary in the public interest and would be disproportionate. In this context, the appellant argues that she had not been guilty of any further incompetence or dishonesty or other misconduct in the meantime. Maybe a decision by a review Panel to impose a severer sanction than the initial Panel thought right, on the basis of the same material, would be vulnerable to attack. However, such a factual scenario seems an improbable one, and it is not at all this case. Two material things had happened between May and November 2015. One was that the appellant had failed in several respects to deal with the list of matters which the May Panel had suggested she address. The other was that in one respect she had, in the review Panel’s judgment, made things worse.[43]It is clear that the review Panel was entitled to take account of these developments, or the lack of them. The primary decision on what conclusions should be drawn is one of professional judgment for the Panel. I would be hesitant to interfere with a conclusion on such an issue. As it happens, I agree with the substance of the Panel’s assessment. There were significant failures to address the May Panel’s list, and no reasonable excuse has been offered or is apparent. More important, however, is the fresh evidence provided by the ‘reflective piece’ which can fairly be characterised as, in substance, unrepentant.[44]Overall, the ‘reflection’ contains no real acknowledgment of any fault, or of any adverse impact on anyone but the appellant herself. Its first paragraph focuses on the “distress and devastation” she has suffered as a result of “this issue with St Thomas NHS.” In relation to competence, there is no recognition of any risk having been posed to patients by the appellant’s lack of competence over a period of over three years. Instead, she asserts (without supporting evidence) that she acted competently at Imperial, that is to say in the job which she gained using deception. She dodges the finding of dishonesty, identifying the issue as “misrepresentation on application form”. The Panel’s findings went well beyond that. She does apologise, and expresses her “embarrassment”. But she demonstrates no insight into what it is that she has to apologise for. Instead, she seeks to contradict the clear conclusions of the Panel by stating “It was not intentional. I feel this occurred due to miscommunication at the time.”[45]The appellant has evidently failed to appreciate throughout these proceedings the gravity of her own misconduct, and the seriousness with which dishonesty is rightly taken by the Council. She was fortunate not to have been made the subject of a striking-off order in May 2015. That, after all, is the normal consequence of a finding of dishonesty. Having benefited from a benevolent approach at that stage, there was a heavy burden on her to demonstrate upon review that the May Panel was right in its judgment that her failings were capable of remediation, and might not be deep-seated. The document she presented to the review Panel was strong evidence to the opposite effect, and the Panel’s conclusions were justified. (3) Failure to have regard to relevant considerations[46]The mere fact that no further misconduct had been perpetrated by the appellant during the Council’s proceedings is of little weight, and could not have made a difference to the Panel’s conclusions. The fact that it was not expressly mentioned does not mean that it was not taken into account. (4) Unnecessary and disproportionate sanction[47]The Panel’s order affects the appellant’s professional life. It does not represent an interference with her Article 8 rights to respect for her private or family life, home or correspondence. It may however represent an interference with Article 1 Protocol 1, which has been recognised as embracing the right to practice a profession. In any event proportionality is recognised as a criterion by which to judge a sanction, whether or not Convention rights are engaged. But there is no merit in the complaint that the striking-off order in this case was disproportionate.[48]The relevant principles are of long standing, and have never been better expressed than by Sir Thomas Bingham MR in Bolton v The Law Society [1994] 1 WLR 512. In words that apply as well to a nurse appearing before the CCC as to a lawyer subject to discipline by their regulator he said this at 519:
“It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. A solicitor can often show that for him and his family the consequences of striking off and suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again … All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence … the reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.”
[49]This appellant cannot go so far as the sample solicitors referred to in the citation. Her references do not meet the standard referred to. She has not shown “tragic” consequences. She has not said, convincingly, that she has “learned her lesson and will not offend again”. The spirit of these principles was faithfully applied by the review Panel in a way that cannot be impugned. The approach of the appeal court to decisions on sanction that require the application of professional judgment remains that “It would require a very strong case to interfere with a sentence imposed by a disciplinary committee, which is best placed for weighing the seriousness of professional misconduct”: In re a Solicitor [1956] 1 WLR 1312 (Lord Goddard CJ). I see no basis for concluding that this sanction was disproportionate. (5) Procedural fairness[50]There is nothing in this ground. The appellant had a full and fair opportunity to address all the points that had to be dealt in order to arrive at a fair decision on sanction.

Conclusions

[51]This appellant was found by the CCC to have acted incompetently and dishonestly. The normal consequence of a finding of dishonesty is striking off. In a carefully reasoned sanctions decision, however, the May 2015 Panel gave the appellant the benefit of the doubt, and an opportunity to demonstrate that her failings were things of the past, which she had remedied. A six month suspension was imposed. The CCC specified areas which required attention during that period, and identified evidence which would assist the appellant before a review Panel.[52]The appellant had an ample opportunity to address the areas which the CCC identified as needing her attention. The review Panel found not only that she had failed to address those areas adequately, but also that her response to the May 2015 decision served as further evidence of impaired fitness to practice. As a result, it reached the conclusion that the only proportionate response was a striking-off order. The review Panel’s decision is carefully reasoned, discloses no error of law or principle, and cannot be faulted by this court on any of the grounds advanced by the appellant. It was not wrong. I would have reached the same conclusion. The appeal must be dismissed, and the CCC’s decision must take effect.