O v NMC  EWHC 2949
The issue of a registrant’s suitability to remain on the register cannot be decided without proper consideration of their mitigation, however serious the misconduct.
Mrs O practised as a nurse in the UK from 2010, following her immigration from Nigeria with her family. Mrs O and her husband beat their children as a form of discipline, including by hitting them with sticks and coat hangers. Mrs O was charged with three counts and her husband with two 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 and their children gave evidence at their trial. They were both convicted by a jury and sentenced to 36 weeks imprisonment.
Whilst in prison, Mrs O wrote a reflective statement in which she said she had been wrong to plead not guilty and wanted to accept responsibility for her actions. Upon her release she completed courses to improve her parenting skills and engaged with the family courts. The family’s social worker noted she was “very contrite”.
Her case was considered by a panel of the NMC Conduct and Competence Committee in January 2015. Perhaps unsurprisingly, they found her fitness to practise was impaired and went on to consider sanction. Mrs O’s representative highlighted in mitigation her genuine remorse, efforts to improve her parenting skills, testimonials from colleagues and fact that her offences were motivated by her experiences of acceptable parenting in Nigeria. He noted the low risk of repetition of similar behaviour in the future.
In its determination on sanction, the panel considered whether to impose a suspension order. It paid regard to the Indicative Sanctions Guidance which indicated suspension may be appropriate where:
“71.2 The misconduct is not fundamentally incompatible with continuing to be a registered nurse or midwife in that the public interest can be satisfied by a less severe outcome than permanent removal from the register”
It determined that the nature of Mrs O’s conviction was so serious that her actions were incompatible with her continuing to be a registered nurse. It then went on to consider a striking off order. In that context it considered her mitigation but nonetheless decided such an order was appropriate.
On appeal, Kerr J found that the committee erred in the way it approached its decision on sanction. Its reasoning was deficient because it failed to consider the mitigating factors in her case prior to making the decision that suspension was too lenient a sanction. He noted:
“where there are only two possible candidates for the appropriate sanction, namely suspension or striking-off, it is critical that all the available mitigation is considered at the stage of considering suspension, as well as when considering striking-off”.
When the panel ruled out suspension on the basis that Mrs O’s behaviour was fundamentally incompatible with her remaining in the profession, the panel was left with no option but to strike her off. The references thereafter to considering her mitigation were redundant. The decision had already been made in the absence of proper consideration of her mitigation. Kerr J was careful to state that, having allowed the appeal on the ground that the committee’s reasoning was flawed, it did not follow that the sanction of strike-off was disproportionate. A new panel would have to consider the matter afresh.
Kerr J went further. He observed that the ‘fundamental incompatibility’ criteria at paragraph 71.2 “in effect asks the question whether suspension is too lenient”. He found the Guidance flawed in that:
“what is set out at 71.2 is, properly appreciated, not a “consideration” at all but the conclusion which either does, or does not, flow from an assessment of the other considerations set out under paragraph 71. Once paragraph 71.2 is found to be inapplicable, the inexorable conclusion is that suspension is too lenient and striking off necessarily follows.”
Notwithstanding the NMC guidance was revised in January 2016 to address this criticism, panels, and indeed other regulators, still need to be reminded of this essential principle – that the ultimate decision regarding the issue of sanction requires a proper consideration not only of the nature of the misconduct, but of the registrant’s personal mitigation, circumstances and character as well. There are no shortcuts.