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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Fuyane v Nursing and Midwifery Council [2012] EWHC 3229 (Admin) (18 October 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/3229.html Cite as: [2012] EWHC 3229 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Sitting at: Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		18th October 2012

HHJ Langan QC:

1. This is a statutory appeal against a decision of the Conduct and Competence Committee of the Nursing and Midwifery Council ('the NMC'). The decision was made on 31 May 2012 and was to the effect that the appellant should be struck off the Register. The appellant admitted the charges for which she appeared before the panel, and accordingly the appeal is limited to the question of penalty.
2. The story is by any standards an unusual one. The background facts are set out in the appellant's Grounds of Appeal and are not, I think, in any way controversial. The appellant is a national of Zimbabwe who was born on 6 February 1978. She is a qualified lawyer who, before she came to this country, worked for a private law firm in Zimbabwe. She left Zimbabwe in September 2002 and has been in this country for in excess of 10 years. She left behind in her home country her two-year old daughter, her parents and her siblings, and she has not seen any of them since 2002. In due course the appellant applied for asylum in the United Kingdom. Her application for asylum was refused and thereafter she became appeal rights exhausted. Her case is currently being considered under the successor to the 'Legacy' scheme. She has never been in receipt of benefits; nor, leaving aside the matters to which I will refer in a few moments and which gave rise to the disciplinary proceedings, has she had any other assistance from the state.
3. The appellant obtained fraudulent documents by which, in 2006, she obtained a place on a three-year nursing diploma course at the University of Worcester. She completed that course in August 2009. She then registered with the NMC and obtained employment as a registered mental health nurse at a nursing home in Birmingham. The financial effect of applying on false papers for the course to which I have referred was twofold: (1) the National Health Service paid, on behalf of the appellant, academic fees to the University of Worcester; and (2) the appellant herself received a bursary by which she could support herself, in part at least, during her studies.
4. At the beginning of the appellant's course, on 4 October 2006, whilst she was attempting to open a bank account for the purpose of receiving her bursary monies, the falsity of the credentials which she presented to the bank was recognised. The matter was reported to the police and the appellant received a caution. At this stage the fact of her wrongdoing was no more widely disseminated, but it was again discovered four years later, at the end of 2010. The appellant was then charged with offences for which she appeared at Birmingham Crown Court on 30 March 2011. Before that appearance, the matter had come to the notice of the NMC, which on 16 February 2011 made the appellant subject to an interim suspension order for a period of 18 months.
5. One can see from the transcript of the proceedings in the Crown Court that the appellant was charged with two offences of dishonesty: one related to the funding for her course for which the National Health Service had paid just under £21,000; the other related to the bursary for which the appellant had received, in round terms, £20,500. The appellant pleaded guilty to both charges.
6. The matter was very carefully considered by His Honour Judge Orme. The judge took the view that, although the offences were very serious and the sums involved were substantial, there was considerable personal mitigation, including the appellant's immediate admission of the offences when they were put to her. The judge felt able to deal with the matter by imposing a short suspended sentence of imprisonment, which was accompanied by a community work order in the total, I think, of 180 hours. The appellant completed her hours quickly.
7. The NMC then commenced disciplinary proceedings against the appellant, the charges being based on the Crown Court convictions. As I have already mentioned, the matter came before the panel on 31 May 2012 when the striking off order against which this appeal is brought was made. The matter was fully and carefully considered by the members of the panel. Looking at the matter in the round, they took the view that, notwithstanding the mitigation which had been placed before them, the offences were so serious that no lesser penalty than striking off was justified.
8. When this court comes to deal with an appeal against the penalty imposed by a professional body it is subject to severe constraints. I mention three in particular. (1) A strong case must be put forward for interfering with the decision of a panel, at least one member of which will have been a member of the appellant's own profession. Such a panel must constitute in general the body best placed to take a correct view of what is required in order to maintain professional standards. (2) The personal circumstances of an appellant must often give way to the public interest in maintaining confidence in the integrity of the profession. The consequence of these first two matters is that an appellant seeking to argue that the penalty imposed by a professional body is excessive faces a much steeper uphill climb than, say, an appellant in the Crown Court seeking a reduction in the penalty imposed by magistrates.
   (3) Proved or admitted dishonesty will frequently, perhaps almost always, lead to removal from a professional register, particularly where, as in this case, the amounts involved are substantial.
9. All these factors combine to deter the appellate court from making a decision which rests on understandable but misplaced sympathy for an appellant. The forensic context requires the judge to approach the case with a somewhat colder eye than would be appropriate if he were sitting in the Crown Court.
10. At the hearing today the appellant has appeared in person. Mr Pretty has appeared on behalf of the NMC. In the case of each, the conduct of the proceedings could stand as a model for the kind of advocacy which ought to be (and too often is not) deployed on an appeal of this kind. The appellant and Mr Pretty each lodged full and easily comprehensible written submissions, which they supplemented by commendably brief oral argument, taking no more than a few minutes on either side. I am grateful to them both.
11. I bear in mind the specific constraints which I have mentioned. I reject as wholly unimpressive one of the appellant's submissions: that the court should pay regard to the fact that the offences were committed before she was subject to the jurisdiction of the NMC. That might be a sound argument in some cases, but cannot be so when the offences were committed in order to gain entry to the profession. Having cleared that point out of the way, I have nonetheless come to the conclusion that the penalty imposed was unduly harsh. In support of the conclusion, I make six points.
12. (1) The appellant committed the offences when she was in the limbo in which failed Zimbabwean asylum seekers are placed. They are not, on humanitarian grounds, returned to their own country. They may have good reasons, political, economic or otherwise, for not returning voluntarily, yet they are prohibited from working here. It is understandable, although I do not condone it, that a highly intelligent woman entered on a course of conduct designed to obtain a further professional qualification and that in the appellant's particular circumstances she was driven to do so by deceitful means.
13. (2) When the appellant's wrongdoing was discovered she immediately admitted what she had done, apologised to everyone to whom an apology was due, and expressed her remorse. I have seen and heard her in court this morning. I am convinced that the remorse is genuine. It is not just the remorse of someone who laments losing a professional qualification and being placed in economically difficult circumstances. The appellant is genuinely ashamed of what she has done, not least because of her professional standing in Zimbabwe.
14. (3) Without repeating what Judge Orme said in his sentencing remarks, I respectfully endorse them. They do not provide some kind of guideline which I am bound to follow, but what he said has made a strong impression on me.
15. (4) I have regard to the various references which were before the NMC. Those references fall into three categories: academic, personal and professional. Taken together, they demonstrate that, these offences apart, the appellant has been a woman of impeccable character.
16. (5) I take account of the fact that, by the commission of these offences, the appellant has inevitably destroyed her primary career as a lawyer.
17. (6) If the appellant obtains leave to remain in the United Kingdom and is struck off the Register, the training and experience which she has gained over the past few years will be lost to the community.
18. The cumulative effect of these factors is that it is possible to treat this case as an exceptional one. Grave though the offences committed by the appellant were, they were not in all the circumstances such as to justify her being struck off from the Register. The appropriate penalty, and that which I substitute for the striking off order, would have been an order suspending the registration of the appellant for a period of one year from the date of the hearing before the panel. That suspension will, accordingly, expire on 31 May 2013. To that extent, the appeal is allowed.