Case Summary - O v Nursing and Midwifery Council  EWHC 2949 (Admin)
High Level Summary
This was an appeal against the Conduct and Competence Committee of the Nursing and Midwifery Council's decision to impose a striking off order, following an admission of current impairment of fitness to practise. The registrant had received a criminal conviction for assault of her three children. The appeal was allowed on one of the three grounds – relating to the Conduct and Competence Committee's failure to provide adequate reasons as to why it had imposed a striking off order instead of a suspension order in the face of a significant amount of mitigation and reflection from the Appellant.
The Appellant, Mrs O, had moved from Nigeria and settled in the UK, with her husband and three children in 2007. From 2010 onwards, she was employed as a registered nurse with the NHS. Mrs O and her husband routinely used corporeal punishment to manage their children's behaviour. This took the form of punishment for conduct such as not doing their homework and the parents would use a cane, a stick or a wire coat hanger. In 2012, one of the children complained about a punishment at school. The three children were taken into care and eventually placed with foster parents. A criminal investigation ensued. The parents' position throughout was that they had no idea that these types of punishment were illegal in the UK and initially the Appellant falsely denied the actions in her police interview.
At the criminal trial, both parents were represented by the same counsel and ran the same defence of not knowing that the actions were considered illegal in this country. They were duly convicted for assaulting the children, contrary to section 1(1) of the Children and Young Persons Act 1933.
By the time of the conviction in March 2014, Mrs O had already undertaken a parenting course and assessment – the results of which were positive – including a conclusion that the children would not be at significant risk if returned to their parents. However, in her pre-sentence report, the report author concluded that she continued to deny responsibility for the criminal offences.
Mrs O was then subsequently referred to the NMC for receipt of the conviction and at the hearing, she accepted that her fitness to practise was impaired by reason of her conviction. Whilst in prison, she wrote a reflective piece on why her decision to plead not guilty had been a wrong one, she also presented evidence of her reflective work and log in relation to her parenting skills and acceptable disciplinary strategies. In addition, she submitted an email from her family solicitor which detailed the fact that the family court proceedings were moving cautiously towards reunification of the family.
On Mrs O's behalf, her counsel at the fitness to practise hearing emphasised her genuine remorse and contrition for past events, as well as the reflective and remedial steps undertaken. The Committee were invited to consider a suspension order as the most proportionate sanction to meet the public interest.
The Committee determined that in spite of the mitigating factors present in the case (which included insight, remorse, previous good character and remedial steps), there were a number of aggravating factors which led them to the conclusion that the only sufficient sanction was a striking off order. The Committee considered the following to be aggravating factors: the conviction on three counts relating to all three children, the vulnerability of the children due to their ages, abuse of a position of trust as parent, the period over which the conduct occurred and the Appellant's failure to admit the offences causing her children to have to give evidence against her in court.
Mrs O appealed on three grounds, namely:
(1) The Committee wrongly placed weight on Mrs O having denied the criminal charges;
(2) The reasoning as to why a striking-off order was imposed was inadequate; and
(3) The sanction of striking-off was disproportionate in all the circumstances.
Mr Justice Kerr dismissed ground 1, indicating that the sentencing judge, as well as the Committee, were entitled to take the view that the manner in which the parents' defence was conducted was an aggravating factor. It also acted to temper the quality of the Appellant's contrition and acceptance of her responsibility.
Mr Justice Kerr dismissed ground 3 as he took the view that in allowing the appeal on ground 2, it could not be concluded that the Committee's decision to impose a striking-off order was disproportionate – that would be a matter for the judgment of the Committee applying itself to its task correctly.
The appeal was allowed on the second ground on the basis that the Committee's decision indicated very strongly that it ruled out suspension as a possible sanction before it had carried out any proper evaluation of the Appellant's mitigation. Once suspension had been excluded, striking-off was the only sanction left open to the Committee. Mr Justice Kerr considered that the Committee fell into error in the way it approached its decision on sanction, in that the Committee recorded the submissions made by both counsel, but did not properly evaluate them. The operative part of the Committee's reasoning was the part in which it ruled out suspension, since that was the exercise which determined that striking-off would necessarily follow. During the reasoning process, there was no evaluation of the mitigation and how this impacted on the decision to reject a suspension order.
Mr Justice Kerr expressed concern with the way in which the Indicative Sanctions Guidance invited the Committee to consider whether or not suspension was too lenient – as one of its 'key considerations'. He concluded that it was not a 'key consideration' but a conclusion that the Committee were asked to reach which left them with no choice but to impose a striking-off order.
Mr Justice Kerr remitted the case back to the same Committee to consider the question of sanction again, taking into account the mitigation, as well as any more recent evidence relevant to the Appellant's insight and remediation.