Mr Michee Pascal Dhoorah v Nursing and Midwifery Council

JurisdictionEngland & Wales
JudgeMrs Justice Eady
Judgment Date07 December 2020
Neutral Citation[2020] EWHC 3356 (Admin)
Docket NumberCase No: CO/2424/2020
CourtQueen's Bench Division (Administrative Court)
Date07 December 2020

[2020] EWHC 3356 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice Eady DBE

Case No: CO/2424/2020

Between:
Mr Michee Pascal Dhoorah
Appellant
and
Nursing and Midwifery Council
Respondent

Mr Lewis MacDonald of counsel (instructed by the Royal College of Nursing) for the Appellant

Mr Michael Bellis of counsel (instructed by the Nursing and Midwifery Council) for the Respondent

Hearing dates: 2 December 2020

Approved Judgment

Mrs Justice Eady

The Honourable

Introduction

1

The appellant appeals against a suspension order review (“SOR”) decision, made by a panel of the Respondent's Fitness to Practise Committee (“FtPC”) at a hearing on 10 June 2020, adding six months to a suspension order imposed on 14 June 2019. For convenience, I refer to the original FtPC panel as “the substantive panel” and to that undertaking the SOR as “the SOR panel”.

2

The hearing before me has taken place remotely, by Microsoft Teams, given the need to reduce the transmission of the Covid-19 virus and in light of this being found to be acceptable by the parties and being a means by which the application could be fairly and justly determined. The principle of open justice was secured by details for accessing the hearing having been published in the cause list. There were no issues of connectivity or audibility during the hearing.

Preliminary Application

3

By way of preliminary application, the appellant was required to seek an extension of time for the service of the papers in this matter. The appellant's solicitor had not realised she was required to do this, having wrongly thought the Court would do so; the papers were eventually served on 19 October 2020. The respondent does not oppose this application, but observes that no good explanation has been provided for a significant delay (service should have occurred within 7 days; the delay was around 3 months), which has led to prejudice in terms of preparation time.

4

I agree with the respondent that the explanation provided for this delay is unsatisfactory; ultimately, however, I am bound to hold that justice favours granting the application. Although the extended period of suspension has almost been completed, and the FtPC will undertake a further review in the appellant's case on 8 December 2020, the appellant would still suffer disproportionate prejudice if not permitted to pursue this appeal. The necessary extension of time is therefore allowed.

The Factual Background

5

The appellant is a registered nurse. After a hearing attended by the appellant, on 14 June 2019 the substantive panel found that, on 10 November 2017, while working as a peripatetic Deputy Manager at Erskine Hall Care Home, the appellant had discussed the perineum with a student nurse (“Student Nurse 1”); had then locked himself in a bathroom with Student Nurse 1, unzipped Student Nurse 1's trousers and pulled down his boxer shorts, exposing his genitals, and touched Student Nurse 1 on his inner thighs; the appellant had then instructed Student Nurse 1 not to tell anyone about any of these actions. All but the first of these actions were, and remain, denied by the appellant; all were found proven by the substantive panel, which concluded that the appellant's actions were both inappropriate and sexually motivated and that his instruction to Student Nurse 1 not to tell anyone of these matters constituted a lack of integrity.

6

The substantive panel considered whether the appellant's fitness to practise was impaired, concluding as follows:

“… your actions put Student Nurse 1 at risk of harm albeit you did not put patients at risk of harm.

In looking to the future, the panel considered that whilst you have not made admissions, indeed you maintain your denial, you have demonstrated an understanding of why the conduct found proved was wrong and how this impacted negatively on the reputation of the nursing profession.

Your reflective piece and oral evidence demonstrated to the panel that you have an understanding of the impact that the behaviour found proved will have on others. The panel accepts that you understand the gravity of the allegation, and that you are mindful of how people will regard you in the future. It was the judgement of the panel that this reduces the risk of you repeating your misconduct. Your evidence was that the proceedings have been a salutary lesson and the panel accept that that is the case. The panel took all those points into account, whilst remembering that you maintain your position that the facts found proved did not occur. The panel took into account the case of Yusuff v General Medical Council [2018] EWHC 13 and understood that it would be wrong to equate maintenance of innocence with a lack of insight. The panel concludes there is some risk of repetition going forward, but accepts, in light of your developing insight, and your genuine understanding of the seriousness of the charges that have been found proved, that your behaviour is highly unlikely to be repeated. Therefore the panel does not find impairment on public protection grounds.

The panel has found that you have breached fundamental tenets of the profession both by reason of your sexual misconduct and your lack of integrity. In so doing you have clearly brought the profession into disrepute. The panel took into account your acceptance of this, when you said in evidence that “colleagues will look at me in disgust and question why I am allowed to practise as a nurse. And patients wouldn't want me anywhere near them”. The panel took into account the case of Grant where it was said that:

Where a Fitness to Practice Panel considers that the case is one where the misconduct consists of violating such a fundamental rule of the professional relationship between medical practitioner and patient and thereby undermining public confidence in the medical profession, a finding of impairment of fitness to practise may be justified on the grounds that it is necessary to reaffirm clear standards of professional conduct so as to maintain public confidence in the practitioner and the profession.

The panel concluded that this was just such a case, by reason of both your sexually motivated conduct and your lack of integrity, and it was the decision of the panel that you are clearly impaired on public interest grounds. Having regard to all of the above, the panel was satisfied that your fitness to practise is currently impaired on public interest grounds but not on grounds of public protection.”

7

As for sanction, the substantive panel determined that:

“… although there had been a clear breach of a fundamental tenet of the profession, there are in your case mitigating circumstances. As such, the panel considered that, in your case, the misconduct was not fundamentally incompatible with remaining on the register. The panel determined that the misconduct occurred on a single shift, albeit there were a number of component parts. The panel noted that Student Nurse 1 told the panel that he had not suffered any lasting harm. The panel has no evidence before it of deep seated personality and attitudinal problems. The panel had regard to the positive reference from your current employer and noted you had practised under direct supervision without further incident. The panel had no evidence before it that you had repeated this misconduct. The panel previously noted that you had developing insight into your misconduct and it was of the view that there was no significant risk that you would repeat the behaviour and therefore found no public protection concerns.

In considering the wider public interest, the panel concluded that an informed observer would accept that a suspension order is the appropriate and proportionate sanction in the circumstances of this case, and that such an order would be sufficient to uphold standards and maintain confidence in the profession.

The panel further considered whether a striking off order would be appropriate and proportionate in your case. Taking account of all the information before it, and in particular the mitigating features of the case, the panel concluded that this would be disproportionate. Whilst the panel acknowledges that a suspension order may have a punitive effect, it would be unduly punitive in your case to impose a striking off order. The panel had concluded that you do not pose a risk to patients. Balancing all of these factors the panel has concluded that a suspension order would be the appropriate and proportionate sanction.

The panel noted the hardship such an order will inevitably cause you. However this is outweighed by the public interest in this case.

The panel considered that this order is necessary to mark the importance of maintaining public confidence in the profession, and to send to the public and the profession a clear message about the standard of behaviour required of a registered nurse.

The panel determined that a suspension order for a period of 12 months was appropriate in this case to mark the seriousness of the misconduct, which involved both sexual impropriety and a lack of integrity on your part.

At the end of the period of suspension, another panel will review the order. At the review hearing the panel may revoke the order, or it may confirm the order, or it may replace the order with another order. Any future panel may be assisted by evidence of:

•Training in professional boundaries, in particular with staff.

•Personal reflection on the learning you have undertaken around professional boundaries.

•Testimonials for any paid or unpaid work.”

8

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1 cases
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    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 24 February 2021
    ...v Khetyar [2018] EWHC 813 (Admin) at §49; GMC v Awan [2020] EWHC 1553 (Admin) at §38 and Dhoorah v Nursing and Midwifery Council [2020] EWHC 3356 (Admin) at §36. From these, I draw the following principles: (1) Insight is concerned with future risk of repetition. To this extent, it is to......

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