Professional Disciplinary Case Digest – July 2017

A summary of legally noteworthy appeals in the High Court against decisions of professional disciplinary panels.

 Please note that discussion below is based on summaries of judgments that were delivered ex tempore. 

1.         Watters v Nursing & Midwifery Council QBD (Admin) (Cheema-Grubb J) 05/07/2017

• It was disproportionate to strike off a nurse who had a 26-year career for one incident of dishonesty, namely falsifying the date on a training certificate. She should have been suspended. The guidance on sanctions should be revised to differentiate between different types of dishonesty.

2.         Akhtar v General Dental Council QBD (Admin) (Judge McKenna) 11/07/2017

• When deciding the duration of suspension to impose on a dentist who had practised without professional indemnity insurance, the General Dental Council had taken into account the six-month interim suspension already imposed during disciplinary proceedings, and was entitled to consider that that had little or no effect on the length of the final suspension to be imposed.

By Navid Pourghazi

1.         Watters v Nursing & Midwifery Council QBD

The appellant nurse was found by the Nursing and Midwifery Conduct and Competence Committee to have dishonestly falsified the date on a training certificate to give the impression that her training was up to date when she applied for a job at a nursing agency. She had denied amending the certificate but the panel considered that the nurse's evidence had been vague and unpersuasive.

The panel decided that her dishonest actions amounted to misconduct, which impaired her fitness to practice, and that she had shown no remorse and little insight into her action. Dishonesty was a fundamental breach of the tenets of the profession and could not be remedied in a way that would protect the public without striking her off.

On appeal, the nurse argued that the panel had shown bias against her, had pre-judged the case, and ignored her good character. She also argued that the decision was unfair and unjust, and that the sanction was excessive and disproportionate.

The High Court found that the personal impact of a strike-off on the nurse, including in terms of her reputation and self-worth, was disproportionate given her good character over a 26 year career, the testimonials stating that she was a good nurse, that no harm had been caused to patients, that this incident was a ‘one-off’, and that the nurse had corrected the error by undertaking the appropriate training course. The Court stated that dishonesty always gives rise to a “severe risk” of having your name erased from the register (citing Parkinson v Nursing and Midwifery Council [2010] EWHC 1898 (Admin)) but nonetheless replaced the sanction of strike-off with a two-month suspension.

However, the most noteworthy part of this decision is that the High Court, for the second time in a just a few months, stated that the NMC’s guidance on sanctions should be revised to differentiate between different types of dishonesty. Readers will remember that in the recent decision of Nkosana Brian Lusinga v Nursing & Midwifery Council [2017] EWHC 1458 (Admin), Kerr J had also stated that the NMC’s Indicative Sanctions Guidance ought to distinguish between different forms of dishonesty. In that case, a breach of contract had essentially been classed in the same category as fraud by the Guidance.

2.         Akhtar v General Dental Council

Before the GDC’s Professional Conduct Committee (“PCC”), a dentist had admitted to practising without professional indemnity insurance between February 2012 and March 2016, in circumstances where he had been informed by June 2012 at the latest that his previous insurance had been terminated. The dentist also admitted that his actions had been dishonest and misleading, and that his fitness to practise had been impaired.

Notwithstanding his dishonesty, the dentist appealed against the sanction of suspending his registration for six months. It is worth noting that there was no evidence of actual harm to the dentist’s patients, and that while he had risked not being able to compensate his patients if there had been any harm, he had arranged for retrospective cover and had shown some insight into his wrongdoing.

The High Court roundly rejected the dentist’s submission that the sanction was wrong because it was inconsistent or disproportionate in light of a previous PCC case.

The more interesting part of this appeal was how the High Court rejected the dentist’s second argument, namely that it was inappropriate to impose a six-month suspension in addition to the six-month interim suspension period.

The High Court held the PCC, in deciding on a six-month final suspension, had clearly already taken into account the interim suspension, having referred to its existence on several occasions during the hearing, and having been reminded to take it into account by the legal advisor.

The existence of a six-month interim suspension did not mean that the PCC had to reach a particular decision on sanction. The Court applied Kamberova v Nursing and Midwifery Council [2016] EWHC 2955 (Admin), holding that it was for the PCC to determine whether the interim suspension would have any effect at all on the final sanction to be imposed. In some cases, it might have little or no impact, and the PCC had a margin of judgment within which to decide.  In this case, the PCC had concluded that a final, six-month suspension was necessary to maintain public confidence in the regulation of the profession, which meant that the interim suspension had less relevance. It had been open to the PCC to take that view and the Court would not interfere with its decision.