Kearsey v Nursing and Midwifery Council [2016] EWHC 1603 (Admin)

Posted by Emma Bradley on
On 27 November 2015, the NMC's Conduct and Competence Committee ("the CCC") found Mr Kearsey ("the Appellant") guilty of misconduct and that his fitness to practise was impaired. The Appellant was subsequently removed from the NMC's register of nurses.

The factual allegations that feature as part of this appeal are as follows:

  1. The Appellant had been convicted of assault by beating his then partner
  2. The Appellant had failed to report his conviction to his employer
  3. The Appellant had failed to notify the NMC of his conviction
  4. The Appellant did not disclose the conviction to his employer when discussing his fitness to practise
  5. The Appellant knowingly provided an inaccurate account of the facts regarding the conviction to his employer
  6. The Appellant was found to have acted dishonesty solely in relation to point.

The Appellant appealed the CCC's decision pursuant to Article 38 of the Nursing and Midwifery Order 2001, citing that the CCC's decision was wrong and unjust. The Appellant raised five grounds of appeal:

  1. No valid notice of hearing was served, since the NMC later sought to rely on material which was not served with it as it should have been.
  2. The CCC wrongly concluded that he was voluntarily absent from the hearing.
  3. The investigatory interview should not have been relied on to any significant extent in view of the evidence about his mental state at the time of interview, and this fact was ignored by the CCC.
  4. The evidence before the CCC included statements by the victim about the Appellant's violent and abusive behaviour towards her which went beyond that charged, and which should have been separately charged if relied upon.
  5. The decision on sanction was inadequately reasoned.

Ouseley J dismissed the appeal.

Judgment

Ground 1

The Appellant submitted that the notice of hearing enclosed some documents but not all of those which the NMC later sought to rely on. The CCC was not aware of this point when it deemed the notice of hearing valid and subsequently decided to proceed in the Appellant's absence. When made aware of this, the CCC decided it would not be fair to consider the documents that were not sent to the Appellant. In light of this, the Appellant submitted that the CCC's decision that the notice of hearing was valid and had been served properly was incorrect as the full documents had not been served on the Appellant. It was argued that the CCC should have adjourned in order for a further notice hearing to be served on the Appellant. The Appellant maintained that this should have been done even though the CCC had decided that the remaining documents would not be used.

Ouseley J re-enforced that the purpose of the notice of hearing had been achieved and as such, the Registrant was not prejudiced. The outcome would have been identical had a further notice of hearing been sent and the CCC were seen to have acted proactively in this regard.     

Ground 2

With regards to ground 2, Ouseley J concluded that the CCC's decision to proceed in the Appellant's absence was justified. It was noted that a notice of hearing had been sent to the Appellant's NMC registered address by first class and recorded post and that the Appellant had not engaged with the investigatory/disciplinary process, nor had he engaged with the NMC. As such, the NMC instructed a tracing agent and a notice of hearing was sent to a further two addresses. Although registrants are required to notify the NMC of any change of address, the Appellant did not do this. Furthermore, the Appellant made no request for an adjournment. Although the Appellant sought to argue that there was no positive evidence that he had voluntarily absented himself from the hearing, Ouseley J dismissed the ground, concluding that an adjournment would have served no purpose and that it was clear that the Appellant was refusing to engage in the process in any way. It was noted that the CCC therefore arrived at the only rational decision to which it would have come.

Ground 3

The Appellant submitted that the CCC had failed to appreciate the significance of the evidence which a witness (Ms 1) had given about the Appellant's state of health during an employer's investigation interview. In turn, it was argued that this could have affected the charge of dishonesty in relation to the account the Appellant gave Ms 1 of the assault. Although the Appellant was convicted of assault by beating on 15 January 2014, he advised Ms 1 during the interview that he had received a conviction for common assault and that it had been classed as 'low risk as domestic'. The account that the Appellant gave to Ms 1 was therefore significantly different.

The Appellant highlighted that Ms 1, whilst giving evidence, said that the Appellant lacked mental capacity during the interview. The Appellant argued that this was relevant to the Appellant's dishonest failure to disclose the real truth during the interview. Ouseley J concluded that there was no evidence to show that the Appellant lacked the mental capacity to know what he had said to Ms 1 was false. Ouseley J noted that had the Registrant attended the hearing, he would have been given the opportunity to explain what he said during the interview; however he did not attend. 

Ouseley J commented on the CCC's decision not to draw adverse inferences from the Appellant's non-attendance. Interestingly, he suggested that regulators may wish to consider whether it is appropriate to draw adverse inferences from non-attendance, and if so, to set out the circumstances in which this may be done.

Ground 4

The Appellant argued that the evidence of two witness statements of the victim should have been redacted before being placed before the CCC. The statements described the assault which led to the conviction, the abusive relationship between the victim and the Appellant and in particular, that there had been an earlier similar assault. The Appellant relied on the decision in El-Baroudy v GMC [2013] EWHC 2894 and submitted that if the unredacted statements were provided to the panel, then the content should have been particularised in a specific charge. 

Ouseley J noted that the evidence of a conviction is not confined to the sole fact of a certificate of conviction; it also includes circumstances relevant to the sentence. The circumstances surrounding the offence, details and sentencing information were all put before the CCC. Again, it was highlighted that the Registrant could have objected to this issue at any stage, however he did not. Ouseley J confirmed that this material was admissible under rule 31 and that its inclusion did not create unfairness for the Appellant. This material was clearly relevant to impairment and sanction, as it demonstrated the Registrant's attitude towards his offending and his lack of remorse. Ouseley J concluded that there was no breach of any procedural rule or unfairness created as a result of the two un-redacted statements being considered by the CCC in relation to impairment and sanction.

Ground 5

The Appellant submitted that the CCC had failed to provide adequate reasons for its sanction decision. The reasons had to be sufficient so that it is clear why the CCC chose the sanction it did and why the other sanctions were not suitable. The Appellant maintained that there was no specific reasoning to the Appellant's case. Ouseley J did not accept this submission, noting that the CCC in their reasoning had set out the aggravating and mitigating factors specific to the Appellant's case. He went on to say that the CCC's reasoning addressed each option for sanction and also considered the option of imposing no sanction.

In this case, Ouseley J concluded that a striking off order was inevitable based on the findings of fact and absence of evidence from the Appellant. The outcome was in line with the approach adopted in Parkinson v NMC [2010] EWHC 1898, which stated a registrant who has acted dishonesty and does not attend a hearing reduces their chances of being able to persuade a panel to adopt a lenient outcome (i.e. to impose a suspension order rather than erasure).

Appeal dismissed.

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Emma Bradley is a Trainee Solicitor in the Commercial Litigation team, based in London.

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