Mr Justice Kerr determined that there was defective and flawed reasoning in the decision of the NMC's Conduct and Competence Committee ('the Committee') to strike off a nurse convicted of assaulting her own children. The judgment has potentially important implications for the interpretation of guidance on the appropriateness of sanctions, and is another reminder that the High Court will closely scrutinise erasures consequent on criminal convictions.
Mrs O, a nurse, was charged by the NMC with having been convicted of three counts of assault, ill treatment, neglect or abandonment of a child likely to cause unnecessary suffering and injury. The conviction resulted from one of Mrs O's three children making a complaint that Mrs O and her husband beat their children as punishment for bad conduct. Mrs O and her husband were subsequently imprisoned for 36 weeks. It was alleged that in light of that conviction, Mrs O's fitness to practise was impaired.
At the NMC hearing in January 2015, Mrs O admitted the charge and admitted that her fitness to practise was impaired. The Committee found that her conduct was a 'breach of a fundamental tenet of the nursing profession'. Counsel for Mrs O argued in favour of suspension rather than striking off, pointing out that the offences did not involve patients and there were no clinical concerns about Mrs O. Submissions were made about Mrs O's remorse and contrition and the remediation work she had undertaken (which was significant). Mrs O accepted responsibility for her actions, stating that she had acted out of ignorance and was influenced by her experience of living in Nigeria, leading her to believe that corporal punishment did not have the potential to cause harm to her children.
The Committee considered the Indicative Sanctions Guidance ('the Guidance') which sets out a non-exhaustive list of factors indicating that suspension may be appropriate and a list of 'key considerations' in relation to a strike-off order. It decided that Mrs O should be struck off the register. It is notable that, subsequent to the CCC's determination, Mrs O has now been trusted with the care of her children (subject to supervision) by social services.
Among the grounds Mrs O advanced were that the reasoning as to why a striking-off order was imposed was inadequate, and that striking-off was disproportionate.
Kerr J found that the Committee fell into error in the way it approached its decision on sanction. As it was common ground in the case that there were only two possible candidates for sanction (suspension or striking off), it was critical that all the available mitigation was not merely recorded, but evaluated, both in relation to suspension and strike off. The Committee failed to evaluate the mitigation and failed to weigh the mitigation against the public interest in maintaining trust in the nursing profession and the regulator.
In particular, Kerr J found that the Committee erred in its application of Paragraph 71 of the Guidance which sets out a non-exhaustive list of factors indicating that suspension may be appropriate. Paragraph 71.2 of the Guidance directs the Committee to consider whether the misconduct is 'not fundamentally incompatible with continuing to be a registered nurse or midwife in that the public interest can be satisfied by a less severe outcome than permanent removal from the register.'
Kerr J noted that properly appreciated, Paragraph 71.2 is not a separate 'consideration' but the conclusion which flows from assessment of the other considerations set out under paragraph 71 (including, inter alia, 'a single instance of misconduct but where a lesser sanction is not sufficient', and 'no evidence of harmful deep-seated personality or attitudinal problems'). Kerr J concluded that it is 'critical to the fairness of the process' that Paragraph 71.2 is addressed at the end of the Committee's deliberations rather than at the outset, as the Committee had done, otherwise the inexorable conclusion is that suspension is too lenient and striking off necessarily follows.
Kerr J acknowledged that it was a matter for the judgment of the disciplinary body, applying itself to the task correctly, to determine whether striking-off was disproportionate. Accordingly, he remitted the matter back to the Committee.
The case is the latest in a handful of recent cases where the High Court has held that prima facie serious criminal convictions do not mean that erasure is inevitable (see also Imran and Samuel); there is a growing trend for the Court to scrutinise more closely whether Tribunals are applying their guidance properly, avoiding a rigid, sequential approach and taking a nuanced or pragmatic application.