Watters v NMC (QBD 2017) (unreported)

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The Claimant, a Registered nurse appealed the decision and striking off sanction of the NMC Conduct and Competence Committee on the basis that the decision was unfair and the sanction disproportionate, considering her 26 year long and unblemished career as a nurse.

Facts

This case relates to a single incident of alleged dishonesty. It was alleged that the Registrant had submitted a certificate of completion for "Level 3 Adult immediate Life Support Training with A&A Training Ltd" as a part of her job application in January 2016. It was alleged that the Registrant changed the date of the certificate from May 2014 to August 2015 to create the false impression that her training in this area was up to date.

A substantive hearing took place in February 2017 in front of the Conduct and Competence Committee who considered the Registrant's evidence to be unpersuasive and vague.  At the hearing, the Registrant accepted that the certificate date appeared to have been changed, however denied that it was her doing. In reaching their decision, the panel considered evidence from the training company that Adult Immediate Life Support Training had not taken place in August 2015. Evidence was also heard that all other candidates who had completed training in May 2014 had received certificates with the correct dates. The panel concluded, in light of the fact that the change in date could have helped the Registrant gain employment and was, therefore, of benefit to her, that the Registrant falsified the date on the certificate. The panel concluded that in doing so, the Registrant's actions were dishonest.

In relation to misconduct, it was submitted on behalf of the NMC that the Registrant's actions breached The Code of Conduct and, with regard to protecting the public and wider public interest, the Registrant's actions amounted to misconduct. The panel heard, on behalf of the Registrant, that this was one off incident in the Registrant's long career as a nurse and that no patients were put at risk of harm as a result of the Registrant's actions, as she became employed elsewhere and, subsequently, was adequately trained for that role. It was also submitted that the Registrant's previously clear fitness to practise history meant there was no risk of repetition of conduct of the sort.

The panel concluded that the Registrant's conduct fell seriously short of the conduct and standards expected of a nurse, and made a finding of misconduct. In doing so, and in support of the decision, the panel considered there to be a breach of promoting professionalism and trust and undermining the reputation of the profession.

In relation to impairment, Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHA 927 (Admin) considered, it was decided that there was a potential risk of harm to patients due to the fact that the Registrant's training was out of date when the application was submitted. The panel concluded that impairment was found on the basis of public protection, considering that the public would be shocked to find that a nurse had falsified a clinical training record. The panel discussed that in reaching this decision, the Registrant's limited insight, remorse and no demonstrated remediation had been taken into account.

Moving on to sanction, the Panel discussed Parkinson v NMC [2010] EWHC 1989 (Admin) which confirmed that a Registrant who has acted dishonestly will always be at severe risk of erasure and the Panel went on to impose a striking off order.

The Registrant appealed the decision of the Panel, to the High Court, on the basis that the Panel had pre-judged the case and ignored her good character. The Registrant brought her appeal on the basis that the decision was unfair and unjust and the sanction disproportionate. 

The appeal was allowed in part. It was found that the Panel had given clear reasoning and had been given correct legal advice in reaching their decision. This ground of appeal was dismissed.

The Court went on to say that proportionality, according to guidance, is an important factor to consider alongside aggravating and mitigating factors. The Court concluded that it was disproportionate to strike off the Registrant, considering her long career and fitness to practise history. The Court recognised that remediation had been undertaken too. This ground of appeal was therefore allowed.

The Court considered Parkinson v NMC [2010] EWHC 1989 (Admin), reversed the striking off order and imposed a two month suspension order in its place.

Commentary

This unreported case highlights the importance of proportionality when imposing the striking off sanction. The decision of the High Court reinforces the significance of weighing a Registrant's fitness to practise history against the length of their career when considering the requisite sanction. In a case such as this, where the allegations relate to one incident of dishonesty against an untarnished record, Panels should weigh these factors carefully. The Court's recommendation that court guidance on sanctions should be revised to differentiate between different types of dishonesty reflects that dishonesty exists on a spectrum and Panels should be wary of imposing the ultimate sanction in dishonesty cases as a matter of rote, where there is evidence of insight and remediation and previous no fitness to practise history.