The Divisional Court quashed decisions of the UKCC's professional conduct committee that the appellant was guilty of misconduct and that her name should be removed from the register of nurses.
The appellant qualified as a state enrolled nurse in 1985. She was well regarded as a nurse but, for health and domestic reasons, was not able to work full-time for very long. She became employed on the nurse bank, working as a nurse when convenient for her and the hospital authority.
She is a learner driver who has had 150 driving lessons but has failed six times to pass a driving test. She appeared before the committee to face eight charges of misconduct relating to a number of road traffic offences. The appellant was represented by a non-lawyer who conducted the defence on the sole basis that because the charges did not relate to her work and conduct as a nurse, the committee could not find her guilty of misconduct. A police constable gave evidence relating to the facts behind her eight convictions for road traffic offences.
The committee retired and found misconduct proven. The constable was then recalled and said there had been absolute discharges relating to four offences. The committee also heard evidence about the competence and behaviour of the appellant as a nurse. It then decided to strike the appellant's name off the register.
Martin Spencer (Royal College of Nursing) for the appellant; Robert Lawson (Walker Martineau) for the UKCC.
LORD JUSTICE WATKINS said that the obligation of the committee was to proceed according to law and to proceed fairly. One of the disturbing matters was that the appellant's representative conducted her defence under a fundamental misconception of the meaning of the word 'misconduct' in the Nurses, Midwives and Health Visiors Act 1979, rules and code of professional conduct.
To bring the profession into disrepute was surely offensive to the code. There was authority for the application of the word misconduct to the commission by a nurse of criminal offences wholly unconnected with her profession. It was not every kind of misconduct of that nature which would necessarily cause a professional conduct committee to make a finding of misconduct. Much would depend on the nature of the offence or offences, their seriousness and the number of times they had been committed.
Crimes of violence, sexual misconduct of a grave nature and dishonesty would inevitably be the sort of crimes which would manifestly attract themselves to be properly labelled as misconduct by a committee. Road traffic offences involving drink on several occasions had been so described.
The appellant's representative should have been told in plain terms that his conception of what could constitute misconduct was erroneous and that the committee intended to proceed on a vitally different construction of the word than he seemed to believe it to bear. Had he been told that, he might have called the appellant to give evidence about the background of the commission of the road traffic offences so that the committee could be better able to judge the seriousness of them.
There was a marked difference between evidence which went to the mitigation of the offence as affecting penalty and evidence which explained the background to the offence which went to the question as to whether the offence was serious enough to be called misconduct.
It was unfortunate the committee failed to inform the representative of his error. At that point the hearing went procedurally wrong and continued to be wrong by the recalling of the police constable to give further evidence which should have been brought to the committee's notice before it concluded that the appellant was guilty of misconduct.
The committee did not proceed properly unless, before retiring to consider the issue of misconduct, it heard in its entirety all the evidence going to that issue and had made known its views on any material construction of the rules or Act so that an appellant could properly decide whether to give or call evidence.
Evidence going to that issue included not only the facts of the commission of the offence but also the personal circumstances and state of mind of the defendant both before and during the unlawful act. All evidence called after the finding of misconduct could only deal with a nurse's record and be such as to mitigate the possible penalty to be imposed. In addition, the committee was not competent to take account of those offences of which the appellant was absolutely discharged.
Turning to penalty, it was easy to understand the attitude of the committee that the nursing profession should be seen to be composed of res ponsible people who acted responsibly both on and off duty. Nevertheless, while it must be conceded that the committee should be allowed to set its own standard in that respect, it could not be right for the most severe penalty, striking off the register, to be imposed save in the most serious case. The committee did not seem to have thought about the possibility of preventing the appellant from acting as a nurse for a limited period of time.
The matter would be remitted for rehearing both as to the finding of misconduct and the penalty imposed.
Mr Justice Ognall agreed.
Ying Hui Tan, BarristerReuse content