Considering Seriousness at the Sanctions Stage
In an appeal where it was asserted that a Fitness to Practise Committee failed at the sanction stage to grapple properly with the seriousness of the registrant’s sexually motivated misconduct, deep-seated attitudinal issues, lack of remorse or risk of repetition, it was also said that a sanction of 12 months suspension with a review was insufficient to protect the public: Professional Standards Authority for Health and Social Care v Nursing And Midwifery Council & Anor [2025] EWHC 1215 (Admin) Lang J
At the time the registrant was working as an agency bank nurse at a nursing home. The panel found that the conduct which resulted in a finding of impairment by reason of misconduct consisted of sexual harassment towards two of his colleagues.
Her Ladyship accepted the Authority’s submission that the panel was required to consider aggravating features at the sanction stage in accordance with the Sanctions Guidance. A panel did not discharge its functions lawfully if it overlooked an aggravating feature at the sanction stage, even if it did take that feature into account when determining the different questions of misconduct or impairment.
The court found that the panel should have considered whether to treat as an aggravating feature the deliberate and predatory targeting of lone female colleagues during night shifts, when they were isolated from other staff members, there was no-one to shout out to for help, and they were less likely to be discovered. Both witnesses gave evidence that they were frightened of the registrant and wanted to get away from him but were unable to do so. The panel, who described the registrant’s behaviour as predatory, accepted the witnesses’ evidence.
Although the panel acknowledged, in the context of impairment, that sexual harassment would often involve the commission of a criminal offence, it failed to consider whether the attempts by the registrant to force himself onto Witness 2 by cuddling her, and placing his lips on her face mask, as if to kiss her, would, if proved to the criminal standard, have constituted a criminal offence of assault, including sexual assault contrary to section 3 of the Sexual Offences Act 2003.
Although that allegation may have been under-prosecuted by the NMC, it was not a reason for disregarding this feature when the statutory basis for the referral was that the decision was not sufficient for the protection of the public. Potential commission of a criminal offence under the Sexual Offences Act 2003 was a more serious matter than mere unwanted physical touching and ought to have been considered by the panel.
The panel ought also to have considered whether to treat as an aggravating feature the fact that Witness 2 had previously been sexually assaulted, a fact which she had made known to the registrant. Although the panel did not adopt the term “vulnerable”, it accepted the relevant evidence which gave rise to vulnerability; it appears not to have considered whether it should be treated as an aggravating feature.
It also ought to have considered whether the emotional harm the registrant caused to both witnesses was an aggravating factor.
Her Ladyship also accepted the Authority’s submission that, on the panel’s findings, the registrant’s misconduct was clearly linked to his harmful deep-seated attitudinal concerns which had not been addressed. The fact that these concerns were still present at the time of the fitness to practise proceedings, some four years after the incidents had occurred, and after the registrant had undertaken a professional boundaries course, combined with the lack of insight or remediation, meant that these concerns were properly classified as deep=seated within the meaning of the Sanctions Guidance.
The court accepted the Authority’s submission that the panel in this case made a similar mistake as in GMC v Stone [2017] EWHC 2534 (Admin) at [53] by making a generalised assertion that erasure would be a disproportionate sanction but failed to grapple with the evidence and findings in the case, and apply the Sanctions Guidance properly. The panel did not give adequate or sufficient reasons for its conclusion that a striking-off order was likely to be appropriate.
The appeal was allowed, the panel’s decision on sanction was quashed and the issue of sanction was remitted for re-determination by a fresh panel in the light of the court’s judgment.