Daina Moyo v Nursing and Midwifery Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang DBE,Mrs Justice Lang |
| Judgment Date | 10 December 2015 |
| Neutral Citation | [2015] EWHC 3547 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/643/2015 |
| Date | 10 December 2015 |
[2015] EWHC 3547 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/643/2015
Achas Burin (instructed by Hamilton Davies) for the Appellant
Tania Dosoruth (instructed by the Nursing and Midwifery Council) for the Respondent
Hearing date: 26 November 2015
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Appellant, who is a registered nurse, appealed against a 12 month suspension order imposed by a Panel of the Conduct and Competence Committee ("the Panel") of the Nursing and Midwifery Council ("NMC") on 8 January 2015.
The Panel found that the Appellant's fitness to practise was impaired by reason of her misconduct in dishonestly working shifts for an agency whilst on emergency/compassionate/sick leave from her principal NHS employer. The Appellant admitted both misconduct and impairment.
She appealed on the grounds that the sanction was excessive and disproportionate, and that the Panel decision was both wrong and procedurally unfair.
The legal framework
The NMC is the statutory body responsible for the regulation of nurses and midwives in the United Kingdom. The Appellant has a right of appeal to the High Court pursuant to Article 38 of the Nursing and Midwifery Order 2001.
The appeal is governed by CPR 52. PD52 provides that the appeal should be by way of rehearing. CPR Rule 52.11(3) provides that an appeal will be allowed where the decision was "wrong" or "unjust because of a serious procedural or other irregularity in the proceedings in the lower court".
Appeals from professional regulatory bodies have three distinctive features. First, the appeal is from a panel with specialist expertise in the relevant profession. These panels are established by statute, indicating Parliament's intention that the primary decision-making body in relation to fitness to practise in the professions would be a specialist panel, and the Courts would only have an appellate function. Second, the panels have power to impose sanctions, whose primary purpose is to maintain public confidence in the profession, rather than to punish. The expertise of a specialist panel will assist it in assessing the appropriate sanction in order to maintain public confidence in the standards of the particular profession. Third, Article 6 of the European Convention on Human Rights is likely to be engaged where the appellant's right to practise his profession may be at stake (see Albert & Le Compte v Belgium (1983) 5 EHRR 533).
The approach to be taken by an appellate court to professional regulatory appeals has been considered in a series of appeals from the General Medical Council.
In Ghosh v General Medical Council [2001] UKPC 29, [2001] 1 WLR 1915. Lord Millet said at [31] – [34]:
"31. Counsel's principal contentions were directed to support a submission that erasure was an excessive and inappropriate penalty, and that the Board should substitute a lesser penalty such as a further period of conditional registration. He sought to persuade their Lordships to adopt a less restrictive approach to their jurisdiction than may sometimes have been adopted in the past. With this in view he reminded their Lordships that proceedings against a registered practitioner for professional misconduct involve a determination of his or her civil rights and obligations and accordingly attract the protection of Article 6(1) of the European Convention on Human Rights. Such protection requires either that the decision-making body (in this case the Committee) constitute an independent and impartial tribunal or, if not, that its processes be subject to control by an appellate body with full jurisdiction to reverse its decision. These submissions were not disputed by the Council and their Lordships accept them.
32. Counsel next submitted that the Committee was not an independent body, and that accordingly the Board must take an expansive jurisdiction when hearing appeals from the Committee if a breach of the Convention was to be avoided. Their Lordships do not find it necessary to consider whether the Committee as presently constituted fulfils the Convention requirements of independence and impartiality, because they are satisfied that their own jurisdiction is sufficient to remedy any deficiency there may be in these respects.
33. Practitioners have a statutory right of appeal to the Board under section 40 of the Medical Act 1983, which does not limit or qualify the right of the appeal or the jurisdiction of Board in any respect. The Board's jurisdiction is appellate, not supervisory. The appeal is by way of a rehearing in which the Board is fully entitled to substitute its own decision for that of the Committee. The fact that the appeal is on paper and that witnesses are not recalled makes it incumbent upon the appellant to demonstrate that some error has occurred in the proceedings before the Committee or in its decision, but this is true of most appellate processes.
34. It is true that the Board's powers of intervention may be circumscribed by the circumstances in which they are invoked, particularly in the case of appeals against sentence. But their Lordships wish to emphasise that their powers are not as limited as may be suggested by some of the observations which have been made in the past. In Evans v General Medical Council (unreported) Appeal No 40 of 1984 at p. 3 the Board said:
"The principles upon which this Board acts in reviewing sentences passed by the Professional Conduct Committee are well settled. It has been said time and again that a disciplinary committee are the best possible people for weighing the seriousness of professional misconduct, and that the Board will be very slow to interfere with the exercise of the discretion of such a committee. … The Committee are familiar with the whole gradation of seriousness of the cases of various types which come before them, and are peculiarly well qualified to say at what point on that gradation erasure becomes the appropriate sentence. This Board does not have that advantage nor can it have the same capacity for judging what measures are from time to time required for the purpose of maintaining professional standards."
For these reasons the Board will accord an appropriate measure of respect to the judgment of the Committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the Committee's judgment more than is warranted by the circumstances. The Council conceded, and their Lordships accept, that it is open to them to consider all the matters raised by Dr Ghosh in her appeal; to decide whether the sanction of erasure was appropriate and necessary in the public interest or was excessive and disproportionate; and in the latter event either to substitute some other penalty or to remit the case to the Committee for reconsideration."
In Meadow v General Medical Council [2007] QB 462, Auld L.J. said at [197]:
"On an appeal from a determination by the GMC, acting formerly and in this case through the FPP, or now under the new statutory regime, whatever label is given to the section 40 test, it is plain from the authorities that the court must have in mind and give such weight as is appropriate in the circumstances to the following factors. (i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect. (ii) The tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides. (iii) The questions of primary and secondary fact and the overall value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers."
In Raschid v General Medical Council [2007] 1 WLR 1460, which was an appeal against sanction, Laws L.J. said, after reviewing the authorities, at [19]:
"19. ….the fact that a principal purpose of the panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations in Ghosh v General Medical Council [2001] 1 WLR 1915, 1923, para 34:"
"the Board will afford an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances."
20. These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment,...
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The Professional Standards Authority for Health and Social Care v Social Work England
...enable the appellate court to understand why the judge reached the decision that they did. 60 In Moyo v Nursing and Midwifery Council [2016] 4 WLR 11, Lang J said in para.13 of her judgment: “The panel was required to give adequate reasons for its decision on sanction. As it is a lay panel......