Case Summary – Okpara v Nursing and Midwifery Council  EWHC 1058 (Admin)
High Level Summary
The Appellant was found by a panel of the Conduct and Competence Committee (CCC) to have acted incompetently and dishonestly. The panel gave the Appellant the benefit of the doubt and did not make an order to strike her off the Register; instead she was suspended for 6 months subject to a review. Upon the review the review panel made a replacement order to strike her from the Register and the Appellant appealed this decision. The High Court dismissed the appeal and concluded that it was within the review panel's rights to make such a decision and that it was right in all the circumstances.
The Appellant was a band 5 staff nurse at Guys and St Thomas NHS Foundation Trust ("Guys"). From 2001 until 2012 she was subject to repeated capability assessments and formal procedures. The Appellant was found to be particularly lacking during poly pharmacy medication administration. Eventually, Guys offered to redeploy her to a band 4 role and the Appellant resigned. Guys referred the Appellant to the Nursing and Midwifery Council (NMC) 12 months later.
In the meanwhile, the Appellant had applied for a nursing role at Imperial and in June 2013 secured a band 5 role. However, the Appellant failed to inform Imperial of the capability hearing at Guys and included some false information on her application form.
Before the CCC, the Appellant faced charges relating to competency and dishonesty. The Appellant denied all of the charges. The hearing took place in May 2015 and the CCC found the Appellant's fitness to practise impaired and determined that her registration was to be suspended for 6 months subject to a review hearing. The panel made it clear that they had come very close to a striking off order as the Appellant had shown limited insight, remorse and remediation. However, they found the misrepresentation/dishonesty not to be "deep-seated". The panel also took the opportunity to issue the Appellant with 'guidance' points to address her behaviour ahead of the upcoming review hearing.
At the review hearing in November 2015 the Appellant made submissions for an extension of the suspension order. The panel reviewed the Appellant's progress against the guidance issued by the previous CCC and found it wanting. In light of the continued demonstration of limited insight, the panel replaced the suspension order with a striking off order. This decision was made under Article 30(2) and (4) of the Nursing and Midwifery Order 2001 (as amended) ("the Order").
During the appeal, the Appellant did not challenge any of the findings of the original CCC, but instead brought an appeal on the following grounds:
- The decision not to extend the suspension and to adjourn the consideration of her fitness to practise was wrong
- There was an imposition of a penalty which was in excess of the power/in breach of the rules, made irrationally or otherwise unlawfully
- The panel demonstrated a failure to have regard to relevant considerations
- The panel determined an unnecessary and disproportionate sanction
- Procedural fairness
Handed down by Mr Justice Warby.
The criticism here was that the panel should have given the Appellant more time to fulfil the required actions as set out in the guidance. Warby J reiterated that the Court would only normally interfere when there is some demonstrable error of principle or failure to take account of some material consideration. In this situation, the panel was able to exercise its discretion and Warby J was satisfied that the panel directed its mind to the issue.
The Appellant's argument that the panel could not impose a striking off order was misconceived. Under 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). This prohibits 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..." However, Warby J indicated that this only applied to the allegations listed under Article 22(1)(a)[(ii), (iv) or (v)] i.e. lack of competence, physical or mental health. It is clear that a review panel is able to make a striking off order in respect of an allegation of dishonesty.
Warby J stated that the Appellant was fortunate not to have been subject to a striking off order in the first place and in light of this, there was a heavy burden on her to demonstrate to the review panel that her failings were capable of remediation and were not deep-seated. In the absence of such a demonstration, the panel's conclusions were justified.
The fact that there was no further misconduct committed by the Appellant since the suspension order was imposed carried little weight.
Warby J confirmed that the decision affected the Appellant's professional life and therefore it did not interfere with her Article 8 rights. It may however, have had the potential to interfere with her rights under Article 1, Protocol 1 which has been recognised as embracing the right to practice a profession. However, the need to maintain, amongst members of the public, "a well-founded confidence…" (Bolton v The Law Society  1WLR 512) was applicable in this case and therefore the sanction was proportionate.
The Appellant had a full and fair opportunity to address all of the points that had to be dealt with in order for the panel to reach a fair decision on sanction.
Warby J concluded that the panel's decision was carefully reasoned, disclosed no error of law or principle and could not be faulted by the court. The appealed was dismissed.