A Question of Proportionality: Sanction Considerations in Watters v Nursing and Midwifery Council

A recent UK case Watters v Nursing and Midwifery Council NMC (QBD 2017) (unreported) highlights the importance of proportionality in sanction decisions. In this matter, the UK High Court found that it was disproportionate to strike a nurse off the register for one incident of dishonesty in circumstances where she had a 26 year unblemished career. The registrant was found to have falsified the date on a training certificate in order to create the false impression that he... A recent UK case Watters v Nursing and Midwifery Council NMC (QBD 2017) (unreported) highlights the importance of proportionality in sanction decisions. In this matter, the UK High Court found that it was disproportionate to strike a nurse off the register for one incident of dishonesty in circumstances where she had a 26 year unblemished career. The registrant was found to have falsified the date on a training certificate in order to create the false impression that her professional training was up to date. The Claimant, a registered nurse appealed the decision of the Nursing and Midwifery Council (the “NMC”) to strike her off the register on the basis that the decision was unfair and the sanction disproportionate considering her unblemished career to date. The High Court reversed the NMC’s decision to strike the registrant off and imposed a two month suspension order instead.

Facts

It was alleged that the registrant as part of a job application had submitted a certificate of completion for "Level 3 Adult immediate Life Support Training with A&A Training Ltd". It was alleged that the registrant had changed the date of the certificate from May 2014 to August 2015 to create the false impression that her training in this area was up to date. The NMC Panel found that the registrant’s actions were dishonest, in light of the fact that the change in date was of clear benefit to her in that it had the potential to help her gain employment. The registrant had admitted during the hearing that the date had been changed but did not admit that it was her doing. The Panel also heard evidence that no training had taken place in August 2015. The registrant put forward the case that this was a once off incident and that no patients were put at risk of harm as a result of her actions. She had subsequently become employed elsewhere and it was submitted that she had the relevant training for that role. The Panel made a finding of misconduct and concluded that the nurse’s conduct fell seriously short of the conduct and standards expected of a nurse.  In so finding, the Panel considered the NMC Code of Conduct and found that there had been a breach of promoting professionalism and trust, thus finding that her conduct undermined the reputation of the profession. The Panel, in considering sanction, referred to Parkinson v NMC [2010] EWHC 1989 (Admin) in support of its decision to impose an order to strike off the registrant.

Appeal

The registrant appealed the decision of the Panel, to the High Court, on the basis that the Panel had pre-judged the case and ignored her unblemished record. The registrant brought her appeal on the basis that the decision was unfair and unjust; and the sanction disproportionate. The appeal was allowed in part, on the proportionality grounds.

Proportionality

The Court, in considering the appeal, placed emphasis on the proportionality considerations in regulatory decision making processes. The Court confirmed these should be considered in conjunction with aggravating and/or mitigating factors in each case. The Court concluded that it was disproportionate to strike off the registrant considering her fitness to practise history and length of service as a nurse. The Court also pointed to the fact that remediation had been undertaken by the registrant in this case. The High Court therefore reversed the order of erasure and imposed a two month suspension in its place. This decision of the UK High Court reinforces the significance of weighing a registrant's fitness to practise history against the length of their career, when considering the requisite sanction. It also highlights a potential need to revise the different levels of sanctions imposable based on the severity of the dishonest conduct.

Curial Deference in Ireland

In this jurisdiction, the High Court is less likely to intervene in reversing sanctions determined by regulatory bodies. The recent cases of The Nursing and Midwifery Board of Ireland v O.C.M. and The Medical Council v M.A.G.A placed emphasis on the fact that the High Court will not lightly intervene or trespass on the jurisdiction of the NMBI and Medical Council in determining the appropriate sanctions to be imposed in disciplinary proceedings. Under the Medical Practitioners Act 2007 and the Nurses and Midwives Act 2011 (the “Acts”), these regulators are required to make confirmation applications to the President of the High Court to impose disciplinary sanctions if the registrant has not appealed the sanction and the sanction is sufficiently serious. The Court in both cases noted that the NMBI and Medical Council are responsible for maintaining standards in their respective professions and ensuring public confidence in their respective professions. Thus, the Court should defer in these matters to the decisions of these professional bodies regarding sanctions to be imposed on their registrants.