Professional Standards Authority for Health and Social Care v Nursing and Midwifery Council, Mr D Wilson [2015] EWHC 1887 (Admin)

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The Professional Standards Authority for Health and Social Care ["PSA"] brought an appeal under section 29 of the National Health Service Reform and Health Profession Act 2002 against the decision of the Conduct and Competence Committee ["CCC"] of the Nursing and Midwifery Council ["NMC"] made on 9 January 2015 to suspend the second respondent, Mr Demonique Wesseh Wilson ["the Registrant"] for four months.

The PSA's appeal was supported by the NMC. Both parties submitted that the decision of the CCC on sanction was wrong and invited the Court to quash the suspension order and substitute it with an order striking the Registrant off the NMC's Register.

The Court found that that the CCC had, in making their decision, given consideration to irrelevant matters and failed to give sufficient weight to other matters which were relevant. The CCC failed to recognise that the overriding factor was the public interest and the standards that the public interest would expect had been fundamentally broken.

Facts

The Registrant was born in 1968 in Liberia. He moved to Michigan in the United States of America in 1984. On 12 December 1988 the Registrant was arrested. In January 1989, he was charged with one count of armed robbery. The following month, he was charged with one count of armed robbery, and one count of possessing a firearm. On 22 May 1989, he escaped from custody prior to his trail.

In December 1993, the Registrant was arrested in the Netherlands and deported to the USA. In December 1994 the Registrant was charged with one count of escaping from custody. He subsequently stood trial, and was convicted on 4 January 1995 of two counts of armed robbery, and one count of escaping from lawful custody. The Registrant was sentenced to five and a half years' imprisonment, of which he served three and a half before being released and deported to Liberia. At this stage, the Registrant's legal name was Alexander Monla Wulu.

On 21 August 2001, an order was made in Liberia granting the Registrant's petition to change his name from Alexander Monla Wulu to Demonique Wesseh Wilson.

The Registrant subsequently moved to the United Kingdom, where he applied for asylum under his new name.

In January 2004, the Registrant applied via UCAS to study nursing at the University of Salford under his new name. On the application form, he indicated that he had no previous convictions and left the box asking for his birth name blank.

The Registrant obtained British Citizenship on 13 December 2013.

On 28 November 2008, the Registrant was arrested whilst trying to enter the USA. He returned to the United Kingdom after spending approximately six months in detention in the USA.

The Registrant applied for registration with the NMC on 9 July 2010. Again, he failed to disclose his previous convictions or change of name on his application form. He also signed a declaration stating that his health and character were sufficiently good for him to be able to practise safely and effectively. The Registrant was registered on 12 August 2010.

The Registrant gained employment as a nurse with Barchester Health Care in November 2011. During the application process, the Registrant failed to disclose his convictions or change of name.

In December 2011, the Registrant was arrested by Greater Manchester Police. The Police decided in June 2013, that no further action would be taken. However, during a search of the Registrant's home during the course of the investigation, a letter was found, dated 7 May 2009 from the United States District Court, Eastern District of New York. The Letter was addressed to the Registrant's former name, Alexander Monla Wulu, and related to an attempted illegal entry to the USA.

The Police established that Alexander Monla Wulu and Demonique Wesseh Wilson is the same person.

The matter was referred to the NMC in August 2012. The Registrant was dismissed by Barchester Health Care on 31 January 2013 for failing to disclose his convictions and that he had previously been known by a different name.

The Registrant obtained further employment through an agency in May 2013. At this stage, he disclosed his convictions, but not that he was under an investigation by the NMC.

The matter was investigated by the NMC and went to a hearing before the CCC on dates in October 2014 and January 2015. On 8 January 2015, the CCC handed down its written decision on the facts. On 9 January 2015, the CCC found that the Registrant's fitness to practise was impaired by reason of misconduct and suspended the Registrant for four months.

Judgment

Handed down by Laing J.

The PSA appealed under section 29 of National Health Service Reform and Health Profession Act 2002 on the basis that the sanction imposed on the Registrant was unduly lenient, and did not have proper regard for the safety of the public or the reputation of the profession. The Court was required to determine whether the sanction was one which, based on the facts and the objective of the disciplinary proceedings, the CCC could have reasonably imposed.

In considering the matter, the Laing J referred to the relevant case law, including R (Council for Health Care and Regulatory Excellence v Nursing and Midwifery Council and Kingdom [2007] EWHC 1806, Parkinson v Nursing and Midwifery Council [2010] EWHC 1898 and Council for Health Care and Regulatory Excellence v Nursing and Midwifery Council and Grant [2007] EWHC 1806.

In her judgment, Laing J made a number of observations about the CCC's determination. She indicated that the three key issues were as follows. The allegation did not suggest that the Registrant was not competent to work as a nurse, therefore any factors relating to his ability to complete his job were of secondary importance.

The CCC was required to assess the seriousness and implications for the public interest of the Registrant's past acts of dishonesty, which enable him to register with the NMC and obtain employment, meaning that any consideration of remediation or risk of repetition was also of secondary importance.

The third point was that an important consideration in cases of this nature is the reputation of the profession. Meaning that individual factors, including the impact of the sanction upon the Registrant, whilst relevant, are of secondary importance.

Laing J noted that there was an additional point, which was that whilst the nature of the Registrant's convictions was important, the nature of the allegation against him related primarily to his failure to disclose his convictions and change of name. Because of this, factors relating to his rehabilitation were also of secondary importance.

Laing J averred that the CCC had erred in the weight afforded to the factors considered by them. In particular that they had noted the risk of repetition was unlikely, which was not considered to be relevant on the basis that the NMC was now well aware of the Registrant's previous convictions. The CCC had given the Registrant credit for showing insight. However, Laing J noted that the insight was insufficient on the basis that the Registrant still did not consider his actions to be dishonest. The CCC considered that the Registrant's failing was not having made himself familiar with the guidelines when applying for registration, however Laing J stated that this was at odds with their finding of dishonesty at the factual stage. Laing J further noted that the CCC had given undue weight to the effect that the sanction would have on the Registrant.

The Court considered that the CCC's findings in relation to impairment were "inadequate and erroneous because there is a mismatch between those findings and the misconduct which the NMS had found the Registrant had committed".

In respect of the question of sanction, Laing J stated that she considered the CCC was "quite wrong" to consider that this was a case that could be appropriately dealt with by way of suspension. Laing J noted that this case involved three occasions of dishonesty where the Registrant attempted to circumvent the NMC's regulatory processes, and his employer's selection process, depriving them both of the necessary information required to make an informed decision about the Registrant.

The mitigation considered by the CCC was either not relevant in a case of this nature, or should have been given little weight. The impact of the Registrant's dishonesty was not the primarily an issues of patient safety, but one relating to the reputation of the profession and trust the public places on it.

For these reasons, Laing J considered that the sanction imposed by the CCC was unduly lenient. The original suspension order was quashed, and the Registrant was removed from the register.

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