O v Nursing and Midwifery Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 22 October 2015 |
| Neutral Citation | [2015] EWHC 2949 (Admin) |
| Date | 22 October 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/831/2015 |
[2015] EWHC 2949 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Kerr
Case No: CO/831/2015
Penny Maudsley (instructed by Lester Morrill) for the Appellant
Nisha Dutt (instructed by the Nursing and Midwifery Council) for the Respondent
Hearing date: 13 October 2015
Approved Judgment
An anonymity order has been made in this case. Neither the appellant, Mrs O, nor her husband or any of her children must be identified, nor must any document be published which might directly or indirectly identify her or her husband or any of her children.
Mrs O came to this country in 2007 to work. Later, from about 2010, she worked for the National Health Service (NHS). She is a qualified nurse. She had a work permit and obtained employment with the NHS as a nurse.
She settled in this country with her husband and three young children. When the children behaved badly she would use corporal punishment on them. Her husband did the same, to two of the three children.
Mrs O would beat the children as a punishment for bad conduct such as not doing their homework. She would use a cane or stick, or a wire coat hanger. She did not understand that this was wrong and illegal in this county.
Her experience of living in Nigeria was that it was acceptable and accepted as a form of punishment. So it was in this country, until a couple of generations ago. Now, while a light slap to a child to enforce good behaviour, causing no injury, is still not illegal, beating with a stick, cane or coat hanger certainly is.
Mrs O did not mean harm to her children. There was no evidence of injury to them but they suffered pain when beaten and eventually one complained about it at school. This led to an investigation and the arrest of Mrs O. When asked about the allegations in interview, she falsely denied them.
In November 2012, the children were taken into care and, subsequently, placed with foster parents. Mrs O and her husband were charged with counts of assaulting or ill-treating a child, contrary to section 1(1) of the Children and Young Persons Act 1933. Both pleaded not guilty. They were represented by the same counsel.
From April to June 2013, Mrs O attended a parenting course while separated from her children. A parenting assessment in January 2014 was positive, and concluded that Mrs and Mr O had been able to demonstrate the parenting skills and tools they had learnt and were able to put them into practice and sustain them over time. The conclusion was that the children would not be at significant risk if returned to their parents.
In March 2014, Mrs O was convicted on all three counts by the jury. Mr O, her husband, was convicted on two counts. Both were sent to prison for 36 weeks. In his sentencing remarks on 9 May 2014, His Honour Judge Seed QC noted that they had pleaded not guilty, as they were entitled to do, but that this had meant their children had had to give evidence against them.
He also noted that their defence had been that the children were lying and this had therefore been put to the children by their counsel in cross-examination. The judge also noted in his sentencing remarks that Mrs O had continued to deny responsibility for the offences even after being convicted of them, when speaking to a probation officer for the purpose of a pre-sentence report.
Mrs O's later explanation of why she had pleaded not guilty was that she had not understood that she was doing wrong, as striking children was acceptable practice in Nigeria where she came from, and she had not appreciated that beating them would cause them physical or emotional harm.
After Mrs O's conviction, the matter was referred to the respondent, the NMC, which is the body responsible for professional regulation and discipline of nurses and midwives. A case investigation officer was appointed and a disciplinary case against her was opened.
While in prison on 11 July 2014, Mrs O wrote a handwritten "reflective statement". In it she said she now accepted she had been wrong to plead not guilty and wished to accept responsibility for the impact of her actions.
She explained that she had done the parenting course the previous year and had shown her skills in contact sessions with the children. She apologised for what she had done, said she had learnt her lesson and that it would not happen again. She said she had acted out of ignorance and was influenced by her Nigerian background.
There were proceedings in the Family Court during this time. When Mrs O came out of prison she began carrying out research on parenting and the skills needed to be a good parent, including avoidance of physical punishment. She kept a written log from 20 September 2014 to January 2015. She typed a note dated 17 January 2015, documenting her research, her aspirations for her children, what she had read and acceptable disciplinary strategies.
She concluded that typed note with an apology for her actions towards her children and the image of the nursing profession, promising it would not happen again. She said she had apologised to her children, and she apologised to the public. She had erred and took full responsibility. That last written apology may have been, by oversight, omitted from the papers at the subsequent hearing which led to the decision now appealed against.
In late 2014 and early 2015, Mrs O obtained fulsome testimonials in writing from a friend and from professional colleagues, testifying to her professionalism and integrity. There have never been any clinical concerns about her performance as a nurse, which she has been for some 16 years in Nigeria and this country.
In her typed note of 17 January 2015, Mrs O expressed determination to be a good parent in future, as well as contrition and remorse about the wrongdoing that had led to her conviction and sentence. She noted that in the Family Court proceedings, progress was being made towards the children being "rehabilitated back into my care". Contact sessions with the children were taking place at the time.
Mrs O was charged by the NMC with having been convicted, on 18 March 2014, of the three counts of assault, ill treatment, neglect or abandonment of a child likely to cause unnecessary suffering and injury, contrary to section 1(1) of the Children and Young Persons Act 1933. It was alleged that in the light of that conviction, her fitness to practise as a nurse was impaired. A hearing date was set for 21 January 2015.
The day before the hearing, an email from Mrs O's solicitor in the Family Court proceedings was sent, and was available to the Conduct and Competence Committee ("the committee") at the hearing on 21 January 2015, together with other documents including Mrs O's handwritten and typed notes, and her log setting out the research she had done.
The solicitor's detailed account in her email included confirmation that the Family Court proceedings were moving cautiously in the direction of reunification of the family, and included reference to a social worker's note dated 12 January 2014 (before her conviction and sentence) that she was then "very contrite accepting her past behaviours unacceptable".
At the hearing before the committee, Mrs O was represented by counsel, Mr Hockley. The NMC was represented by Mr Vallance. The committee was assisted by a legal assessor, Mr Mitchell. Mr Hockley explained that Mrs O admitted the charge and admitted that her fitness to practise is currently impaired by reason of her conviction, on the basis of public interest.
The legal assessor clarified that the judge had sentenced Mrs O on the basis of the "assault limb" of section 1 of the Children and Young Persons Act 1933. Mr Hockley went onto explain that he intended to make submissions "regarding what level of insight and remediation may have taken place". He did so by reference to the documents I have mentioned.
Mr Vallance cautioned the committee against accepting the "reflective documents", as he put it, "at face value". He pointed out that she had denied the offences even after conviction, prior to sentence.
Mr Hockley made his submissions, though not by way of opposing the proposition that Mrs O's fitness to practise was impaired. He emphasised that there were no professional or clinical concerns about Mrs O's performance and no danger to the public. He emphasised Mrs O's genuine remorse and contrition, and the remediation work she had undertaken.
The committee found that her fitness to practise was indeed impaired. The failure to obey the laws of the country in which she was practising was serious and her conduct was a "breach of a fundamental tenet of the nursing profession".
The committee went on to find that her conduct had "fallen far short of the standards expected of an experienced registered nurse"; and that "were a finding of impairment not made, public confidence in the profession would be undermined as would the reputation of the nursing profession".
After a break, the committee went on to consider the question of sanction. Before hearing from Mr Vallance, Mr Hockley stated that he did not wish to call Mrs O to give evidence but she made a short verbal statement reiterating her apology for parenting her children in the way that she had done, stating that she loved them and had good intentions for them, that she had learned her lesson, that "this will never happen again" and that she was "sorry for...
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