Miguel Junior Gabarda v Nursing and Midwifery Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 21 October 2015 |
| Neutral Citation | [2015] EWHC 4039 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 October 2015 |
| Docket Number | CO/1184/2015 |
[2015] EWHC 4039 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Kerr
CO/1184/2015
Mr O Manley (instructed by the Royal College of Nursing) appeared on behalf of the Claimant
Ms A Hilken (instructed by the Nursing and Midwifery Council) appeared on behalf of the Defendant
This is an appeal under article 38(1) of the Nursing and Midwifery Order 2001 (SI 2002/253) against a determination by the respondent's Conduct and Competence Committee set out in a decision letter of 10 February 2015, in which it determined that the appellant's fitness to practise as a nurse was impaired by reason of his misconduct, and to make an order striking him off the register of nurses.
I shall refer to the appellant as "Mr Gabarda", to the respondent as the "NMC" and to the Conduct and Competence Committee as "the committee".
Mr Gabarda is from the Philippines. He came to this country in 2003 to work. He sends money back home to his family in Philippines. In 2012, he was working as a registered nurse at two different nursing homes in Wales: Merton Place and Bryn Marl. The two homes house elderly and vulnerable service users, many of whom have difficulties communicating as well as mobility and ill health problems.
Certain incidents leading to disciplinary charges took place between March and August 2012 at the two nursing homes. Following these events, Mr Gabarda resigned from his position at Merton Place on 5 July 2012, while under investigation, and was dismissed from position at Bryn Marl on 6 August 2012.
He was charged with numerous disciplinary offences of alleged misconduct. The allegations, broadly, fell into three categories:
(1) six instances of engaging in unacceptable sexually motivated conversation and behaviour at Merton Place;
(2) one charge of failing to maintain the dignity of a patient at Merton Place;
(3) one charge (divided into three separate sub-allegations) of unacceptable unhygienic practice while working at Merton Place; and
(4) two instances of engaging in unacceptable sexually motivated conversation and behaviour while working at Bryn Marl.
The committee is the arm of the nursing profession responsible for regulating conduct and discipline. It consists of two lay members and a registrant member, who in this instance was a Mrs Tilley.
The proceedings Mr Gabarda faced were defended vigorously by him. Both parties were represented by counsel. The matter was heard over eight days in the period from September 2014 to February 2015. Witnesses gave written and oral evidence.
After the evidence, Mr Gabarda received the decision on findings of fact — and on which charges were found proved and not proved. The parties then made submissions on misconduct and whether Mr Gabarda's fitness to practise as a nurse was impaired.
After that, the committee gave its decision orally on the issues of misconduct and whether Mr Gabarda's fitness to practise as a nurse was impaired. The parties then made submissions on what sanction should be imposed, the committee having determined that he had committed misconduct and that his fitness to practise as a nurse was indeed impaired.
The committee's decision on sanction was then given. It made an order striking Mr Gabarda off the register of nurses, and an interim order for 18 months prohibiting Mr Gabarda from practising pending any appeal. The committee's detailed written decision was sent to the parties on 10 February 2014.
Since the disciplinary proceedings, Mr Gabarda has been working as a carer in another nursing home, but not as a nurse.
Under article 38 of the Nursing and Midwifery Order 2001, read with CPR 52.10(2), the court's powers are to dismiss the appeal or to allow it and quash the decision, and in that even to substitute any decision the committee could have made, or remit the matter back to the committee. By CPR 52.11(3), I am required to allow the appeal if the decision below was either wrong, or unjust because of a serious procedural or other irregularity.
The correct approach to an appeal such as this is set out in a number of authorities of which I need mention only a few: Raschid v. General Medical Council [2007] 1 WLR 1460, [2007] EWCA Civ 46, per Laws LJ at paragraphs 18–20:
18 The panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor. This, as it seems to me, engages the second strand to which I have referred. In Marinovich v General Medical Council [2002] UKPC 36 Lord Hope of Craighead, giving the judgment of the Board, said:
"28. … In the appellant's case the effect of the committee's order is that his erasure is for life. But it has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession.
"29. That is not to say that their Lordships may not intervene if there are good grounds for doing so. But in this case their lordships are satisfied that there are no such grounds. This was a case of such a grave nature that a finding that the appellant was unfit to practise was inevitable. The committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession than to the consequences to the appellant of the imposition of the penalty. Their Lordships are quite unable to say that the sanction of erasure which the committee decided to impose in this case, while undoubtedly severe, was wrong or unjustified."
19 There is, I should note, no tension between this approach and the human rights jurisprudence. That is because of what was said by Lord Hoffmann giving the judgment of the Board in Bijl v General Medical Council [2002] Lloyd's Rep Med 60, paras 2 and 3, which with great respect I need not set out. As it seems to me 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, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case.
In Azzam v. General Medical Council [2008] EWHC 2711 (Admin), McCombe J (as he then was) said at paragraph 25:
25. In broad terms I accept the submissions of Miss Callaghan for the GMC, as to the proper approach for the court on an appeal under Section 40 of the Act, which were not disputed by Mr. Forde QC (with whom Mr De Bono appeared) for Dr Azzam. These principles are well established and appear most recently from GMC v Meadow [2007] QB 462, Raschid & anor v GMC [2007] 1 WLR 1460 and Gupta v GMC [2007] EWHC 2918 (Admin). The principles are:
(1) The panel is concerned with the reputation and standing of the medical profession, rather than with the punishment of doctors;
(2) The judgment of the panel deserves respect as the body best qualified to judge what the profession expects of its members in matters of practice and the measures necessary to maintain the standards and reputation of the profession;
(3) The panel's judgment should be afforded particular respect concerning standards of professional practice and treatment;
(4) The court's function is not limited to review of the panel decision but it will not interfere with a decision unless persuaded that it was wrong. The court will, therefore, exercise a secondary judgment as to the application of the principles to the facts of the case before it.
And in GMC v. Prof Sir Roy Meadow [2006] EWCA Civ 1390, per Auld LJ said at paragraph 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 [italics in original] to the following factors. (i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical...
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