JAMES KEARSEY v NURSING & MIDWIFERY COUNCIL (2016)

A nurse appealed against the respondent NMC’s decision to remove him from the medical register for misconduct.

The charges proven against the appellant were that he had been convicted of assault by beating his partner, he had failed to report his conviction to his employer or the NMC, and he had knowingly and dishonestly provided an inaccurate account of the facts behind the conviction. In coming to its decision, the NMC’s fitness to practise panel considered an interview between the appellant and his employer in which the appellant gave a false account of the facts leading to the conviction, as well as two witness statements of the assault victim. The appellant did not attend the hearing before the panel.

The appellant submitted that:

(1) no valid notice of the hearing was served, because the NMC had sought to rely on material which had not been served with the notice;

(2) the panel wrongly concluded that he was absent voluntarily from the hearing;

(3) the interview should not have been relied on to any significant extent in the light of evidence about his fragile mental state at the time of the interview;

(4) the evidence before the panel included statements from the victim about his violent and abusive behaviour towards her which went beyond that charged, and which should have been separately charged if relied on;

(5) the decision on sanction was inadequately reasoned.

HELD: (1) The Nursing and Midwifery (Fitness to Practise) Rules r.11(3) provided that the notice of hearing had to be accompanied by copies of any documents in support that had not been previously disclosed. However, principles of public law did not require the division of statutory obligations into mandatory and directory requirements, such that any failing in “mandatory” procedural requirements necessarily invalidated all subsequent steps or caused a tribunal to lose jurisdiction. In any event, while the notice may have had a defect because it was not accompanied by all the material on which the NMC intended to rely, the purpose of the notice of hearing, namely to send the appellant the material on which the NMC was actually to rely, had been achieved. There was no unfairness (see paras 5, 7 of judgment).

(2) There had been ample evidence on which to conclude that the appellant had voluntarily absented himself from the hearing. There had been nothing incorrect in proceeding in his absence (paras 10-11).

(3) There was no evidence that the appellant had lacked mental capacity to know that what he said in the course of the interview was false, or to know that giving a false account to the employer at that interview was dishonest. The panel had no basis on which to attribute his demeanour to any genuine feelings of stress. It would have been open to the appellant to explain what he had said in that interview in evidence to the panel, but he had chosen not to (para.18).

(4) The Nursing and Midwifery Order 2001 art.22 concerned the procedure to be followed where an “allegation” was made that a registrant’s fitness to practise was impaired by misconduct or a conviction in the UK. As a general proposition, the required particularisation of the allegation by charges meant that the particulars which were not charged could not be relied on in relation to the allegation of misconduct. However, although a conviction was an allegation by reason of which fitness to practise might be impaired, it was not as such an allegation of misconduct. A conviction was governed by r.31 of the Rules, and by virtue of r.31(2), a certified copy of the certificate of conviction was conclusive proof of the conviction, and findings of fact on which the conviction was based were admissible as proof of those facts. It had to be remembered that the allegation was that fitness to practise was impaired by reason of the allegations proved; in the instant case, they were the misconduct proved and the conviction. However, the judgment as to whether a registrant was unfit to practise permitted and might require a broader perspective. The same applied to the question of sanction. Each of the two latter stages, whether in relation to misconduct or conviction, might be accompanied by further representations and evidence, as the focus of the issue was different to the finding of fact stage. The findings of fact on which the conviction was based were not confined to bare facts which proved guilt of the offence or its circumstances, but also included those relevant to sentence which, in context, was part of the conviction. Against that background, the victim statements were admissible under r.31 (paras 21-41).

(5) The panel’s reasoning on sanction was adequate (paras 46, 49, 55-56).

(Per curiam) The panel had decided not to draw adverse inferences from the appellant’s non-attendance. That appeared to be a policy for NMC panels, but it was not clear that it was required by law in all cases. The court suggested that the NMC might wish to consider whether it was appropriate, and if so when, to draw adverse inferences where a registrant had refused to engage and to attend when there were obvious matters calling for an explanation, as opposed to simply pointing to the absence of evidence to the contrary of what the NMC had said (para.20).

Appeal dismissed

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