12-08-2013

Chuah v Nursing and Midwifery Council [2013] EWHC 894 (Admin)

The nurse was registered with the NMC and received a conviction for drink driving and assault. As a result he was referred in respect of the allegations of misconduct before a fitness to practise panel and as a consequence made subject to an order for erasure. He represented himself at the hearing.

The Panel followed the three stage approach to be adopted in fitness to practise proceedings. At the initial fact finding stage the factual basis of the allegations was considered and as a result of his admission were found proved. At the second stage, as regards the issue of impairment, the NMC sought to refer to the registrant’s previous conviction for drink driving some several years earlier. The nurse did not object to the adducing of that evidence but on the second day of the hearing sought an adjournment of the hearing. He wished to seek a report from a psychiatrist to show that he was no longer alcohol dependent. That application was refused both on the basis that it was made very late in the day and also that the NMC did not deny that he was no longer alcohol dependent.

The Panel went on to determine impairment and found it established. The Panel referred in particular to the fact that the conviction for assault was particularly serious as it had taken place on hospital premises and involved an assault on a member of staff.

The conduct was serious and tended to damage the reputation of the profession. The nurse had not demonstrated sufficient insight particularly with regard to the potential impact of his behaviour of the public and there was a sufficient potential of harm to patients as a result of his current impairment of fitness to practise.

At sanction stage, the Panel considered both the fact he had previously been subject to a regime of conditions of practise. He had also been struck off the register following an offence of fraud. Whilst he had not repeated his convictions in the intervening period they were not isolated incidents. He was made subject to an erasure sanction.

The nurse appealed. The Panel commented that the Notice of Appeal  ( N161) was deficient: it did not summarise (a) why it was said the panel's decision was wrong, or (2) why it was said that the decision was unjust, either because of serious procedural, or other, irregularity (see CPR Pt 52.11(3).

In considering an appeal: ( ref Sheill v General Medical Council [2008] EWHC 2967 (Admin))

(1) The Appellant must establish an error of law or fact (or both), or judgement, on the part of the Panel.

(2) Although the statutory appeal is technically a rehearing, in reality it involves a review of the evidence and the material before the Panel in accordance with the parameters set out in Gupta v GMC [2001] UKPC 61, 64 BMLR 56, [2002] 1 WLR 1691 and Ghosh v GMC [2001] UKPC 29, [2001] 1 WLR 1915.

  

(3) Because it does not itself hear the witnesses give evidence, the court must take into account that the Panel was in a far better position to assess the reliability of the evidence of live witnesses where it is in issue, see Stanley Burnton J in Threlfell v General Optical Council [2004] EWHC 2683 (Admin) at 21.

4) Although the court adopts the conventional test on hearing an appeal, Disciplinary Committees possess professional expertise that a Judge does not have. It follows that on an appeal from a Disciplinary Committee, the court recognises that it is less qualified to assess evidence relating to professional practice and the gravity of any shortcomings, and it therefore accords the decision of the Committee an appropriate measure of respect, but no more: see Ghosh v General Medical Council [2001] UKPC 29, [2001] 1 WLR 1915, at 33 and 34 and Preiss v General Dental Council [2001] UKPC 36, [2001] IRLR 696, [2001] 1 WLR 1926 at 26 and 29.The court should also bear in mind the point referred to by Laws LJ in Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46, 26, [2007] 1 WLR 1460, [2007] ICR 811].

(5) The importance of two principles: the preservation of public confidence in the profession and the consequential need to give special place to the judgment of the specialist tribunal.

 

In respect of all points the appeal failed.

As regards the issue of adjournment:

“the two convictions which are set out in the charges dated back to 2008 and 2009. This hearing comes as no surprise to Mr Chuah. There have been, we have been told, interim hearings and two pre-meetings. The panel agrees that Mr Chuah has had ample opportunity to obtain a psychiatric report. The panel cannot see that it is to the benefit of the public or the public interest to adjourn the hearing and to give Mr Chuah more time to obtain the report . . . . It does not seem to the panel that fairness to Mr Chuah requires the panel to adjourn the hearing to obtain a report from a consultant confirming Mr Chuah's abstinence, when his assertion to that effect has not been challenged.”