Isaghehi v Nursing and Midwifery Council (2014) EWHC 127 (Admin)

Posted on
Mr Isaghehi, a psychiatric nurse, lost his temper with another driver, drove in an intimidating manner and ended up losing control and causing both cars to crash. Although the other driver had to be cut from his car, fortunately no one else was seriously injured. At trial Mr Isaghehi pleaded not guilty to dangerous driving and was convicted. He received a sentenced to 15 months custody.

At his fitness to practice hearing the panel considered the issue of impairment. Having noted the positive references regarding his nursing skills, it noted:

"However… a conviction such as this is extremely damaging to the reputation of the profession and is therefore hard to remedy. The evidence before the Panel did not satisfy the Panel as to Mr Isaghehi's insight. It has heard nothing to explain why he behaved as he did on the day in question and nothing which would reassure it that such behaviour will not be repeated or that Mr Iseghehi understands the seriousness of his action."

It went on to consider sanction. Whilst the panel accepted suspension would address the public protection concerns, in its view only a striking off would maintain public confidence in the profession.

On appeal Mr Isaghehi argued that suspension would have been sufficient. Turner J considered the NMC Indicative Sanctions Guidance closely and, in applying its principles, he made the following observations:

  1. It was a single instance of misconduct.
  2. The public interest could be satisfied by a lesser outcome. Significantly, whilst Mr Isaghehi had behaved terribly, he had never intended to cause any injury and no-one was in fact seriously hurt.
  3. There were no deep-seated attitudinal issues. He had worked as a nurse for years and no one had raised concerns over his abilities to stay calm in the face of challenges. References submitted on his behalf should not be considered by way of mitigation, but rather as "an indication if how the public interest might best be served".
  4. He had remediated his offending and had not exhibited such behaviour since. He had attended all his license appointments and completed a victim awareness course. The judge had heard from him during the hearing, unlike the panel, and concluded "his attitude towards his offending was one of unsolicited and, in my view, genuine contrition."
  5. He had shown insight and there was not a significant risk of repeating his bad behaviour.

In his view the original order was "disproportionately high notwithstanding the breadth of the range of legitimate opinions on the issue". Although he paid deference to the professional panel's view, he felt able to reduce the sanction to suspension.

Commentary

This appeal marks a rare example of a judge being prepared to substitute his own judgment for that of the panel's. In contrast, the High Court refused to do so in the recent case of Gatawa v Nursing and Midwifery Council (2013) EWHC 4370 (Admin), despite Andrews J noting that if she had heard the case at first instance she would not have struck off the registrant. It remains to be seen if Turner J's robust approach to the issue of sanction will be followed by some of his colleagues.