Ayettey v NMC [2017] EWHC 1462 (Admin)

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Mr Ayettey ("the Appellant") brought an appeal against a striking off order handed down by a panel of the Nursing & Midwifery Council (NMC) Conduct and Competence Committee ("the 2nd Panel") in September 2016.

The Appellant initially appeared before the Conduct and Competence Committee in May 2015 ("the 1st Panel"). The allegations brought against him were in two parts, firstly; they related to inappropriate sexually motivated behaviour, and secondly; they related to a failure to disclose adverse disciplinary proceedings on an application form for agency nursing work (and thus dishonesty also alleged). The Appellant denied all of the allegations brought against him. 

The 1st Panel found the allegations proved in full, however, the hearing was adjourned and another Committee therefore was tasked with considering misconduct and impairment. 

In the meanwhile, the Appellant brought an appeal against the findings of the 1st Panel (with specific reference to the allegations of inappropriate sexual misconduct).  This appeal (before Holmes J) was successful on the ground that the prosecution was found to have adduced hearsay evidence that the Appellant had a propensity towards sexual misconduct and that this had adversely effected the 1st Panel's decision.  The findings in relation to the sexual allegations alone were set aside and the remitted to be re-determined by a differently constituted panel (the 2nd Panel).

The 2nd Panel were able to see the 1st Panel's findings in relation to the dishonesty charges and when considering misconduct and impairment, they inadvertently allowed the Appellant to give evidence of fact in relation to these even though the allegations themselves had not been remitted.  During the course of this evidence, the Appellant changed his stance on the charges and made some admissions.

Nevertheless, the 2nd Panel disbelieved the Appellant's evidence in its entirety and determined that his fitness to practise was impaired. A striking off order was given. 

The Appellant sought to appeal the sanction.

Grounds of Appeal

Due to the unconventional approach of the Appellant, no separate document citing the grounds of appeal was submitted as per the requirements of CPR Part 52. Instead, the Judge drew out a number of grounds of appeal from the submissions made within two skeleton arguments. 

From the first skeleton argument, three grounds could be ascertained. These related to the proportionality of the sanction and its overall fairness and that the 2nd Panel gave insufficient weight to the Appellant's case (personal mitigation and testimonials).

The supplementary skeleton contained grounds relating to the scale of the dishonesty found, the Appellant's high personal and professional qualities, the stress the Appellant was under due to his employment tribunal proceedings and whether or not the Appellant had told a "white lie".  Further expansion was also given on grounds relating to the inadequate treatment of the Appellant's testimonial evidence.

Even though they were present in the first skeleton, at the outset, the Judge dismissed any suggestions of bias and/or any argument to be had in reliance on Article 8 of ECHR. These arguments were dismissed as being "far-fetched" and identifying no "specific aspect of cognitive bias"

Judgment

The Judgment was handed down by Mr Justice Walker.

Walker J confirmed that none of the grounds of appeal contained anything which expressly involved an error of law and therefore the Court was restricted to allowing the appeal if it was satisfied that the sentencing decision was clearly inappropriate.

He noted that as a matter of principle, it had been too late for the Appellant to give evidence in relation to the dishonesty allegations already found proved and nevertheless, the 2nd Panel had allowed him to do so.  Within his evidence the Appellant conceded to the realisation that his actions had been dishonest and in light of this, he was actively disbelieved by the 2nd Panel in relation to his account.

Walker J did not consider that dishonesty which involved a "massive misjudgement" throughout an "extended period" of time would ordinarily be considered to be a "white lie" this was irrespective of the counter argument that the Appellant had received a limited pecuniary benefit. 

Walker J found the argument that the Appellant's "ability to reason properly" was compromised due to the stress of his ongoing employment proceedings as being unfounded and ill argued.

The Appellant made specific reference to passages of text within the transcript of proceedings whereby he believed he had demonstrated insight and remorse to the Panel. He then claimed that the 2nd Panel had not made sufficient reference to these representations during their decision making.  Walker J stated that it appeared that the Appellant had only given the "correct answers" that the Panel were looking for during guided re-examination and that this did not give confidence that he would identify this position without assistance.  Walker J concluded that there was no basis for thinking that the 2nd Panel had ignored the passages in the Appellant's evidence which were relied upon during the appeal.  Not only this, but Walker J also felt that the 2nd Panel had given adequate weight to the Appellant's testimonial evidence.

In relation to the Appellant's testimonial evidence, Walker J said that it was quite impossible to think any direction to the Appellant's prior good character would have made any difference in regard to sanction in this case. He noted that the Appellant's testimonials did not speak positively of the Appellant's honesty and spoke more to his clinical capability. 

Overall, it was decided that the serious nature of the Appellant's dishonesty, and the 2nd Panel's reasoning for concluding that the Appellant had only limited insight, along with the lack of merit in the Appellant's specific complaints with the determination, Walker J could not say that the 2nd Panel's findings were inappropriate.

In respect of the argument that the sanction decision was not proportionate in that the public interest consisted not only in having a safe profession in which the public can have confidence by also in allowing a nurse of good standing to continue valuable work.   In Walker J's view, there is no lack of proportionality for the reasons passed by the 2nd Panel; it was clear from the evidence at the second hearing that it was not possible to be confident that the Appellant would act with integrity.

Commentary

Walker J's judgment highlights that even where the 'kitchen sink' is thrown during an appeal against sanction where there has been an adverse finding of dishonesty, unless there are errors of law, the bar for a sanction to be viewed as "inappropriate" is a high one indeed.  It will rarely be satisfied by generic grounds of appeal arguing that a disciplinary panel has to some extent failed in its duty to consider all evidence properly brought before it.