Registered Nurse loses appeal against decision to remove his name from the NMC register

Peter Teong Tatt Chuah, was struck off by the Nursing and Midwifery Council (“NMC”) Conduct and Competence Committee panel after they heard that Mr Chuah had received convictions for drink driving and common assault.

Mr Chuah was convicted of drink driving on 17 November 2008. The incident occurred on Wednesday 3 September 2008. Police Officers stopped Mr Chuah after they found him driving excessively slowly and weaving across the carriageway. Mr Chuah was unsteady on his feet and smelt of alcohol.

Mr Chuah was arrested and taken to the police station where he supplied two specimens of breath for analysis. The lower reading contained 92 microgrammes of alcohol per 100 millilitres of breath. The prescribed limit is 35 microgrammes of alcohol per 100 millilitres of breath. Mr Chuah was sentenced to a 12 month Community Order, required to attend a 16 day drink impaired driver’s course, attend Probation, ordered to pay £150 costs and disqualified from driving for three years.

The registrant received another conviction on 8 June 2009 for common assault. On 21 March 2009, Mr Chuah had been visiting a relative at Selly Oak hospital, Raddlebarn but was being extremely abusive in front of other patient’s families. Mr Chuah was asked to calm down by a Ward Sister but continued and security were called. Mr Chuah was asked to leave and warned he would be escorted from the hospital site. Mr Chuah refused and was taken by the arm and escorted from the ward and the hospital.

When Mr Chuah got to the main entrance, he turned around and poked the security staff member in the face, to the left side of the cheek, causing discomfort and slight reddening. Mr Chuah was restrained by hospital security and the police were called. Mr Chuah pleaded not guilty but was convicted by the Magistrates of one charge of common assault. Mr Chuah was sentenced to a 12 month community order and had to pay £100 costs.

At the hearing the NMC case presenter sought to adduce evidence of a previous conviction that Mr Chuad had for an offence of drink driving 10 February 2005. Mr Chuah did not dispute the fact of the conviction but pointed out that a panel of the Investigation Committee in 2005 decided that his fitness to practise was not impaired by way of this conviction. The panel decided to allow the NMC’s application to adduce further evidence and take into account Mr Chuah’s previous conviction for drink driving.

The reason for this was that the information would be useful in determining the registrant’s current impairment. The panel considered that it was relevant as it was an identical offence to the charge of the registrant’s more recent conviction for drink driving. Furthermore, the panel noted that in the agreed bundle there were documents that Mr Chuah asked to be placed before the panel in which he refers to the 2005 conviction.

At the hearing, Mr Chuah made an application to adjourn in order to gain a psychiatric report confirming he had been free from alcohol for approximately one year. This was refused on the basis that Mr Chuah had ample opportunity to obtain a psychiatric report as there had been interim hearings and two pre-meetings. The panel said that it did not seem that fairness to Mr Chuah required the panel to adjourn the hearing to obtain a report from a consultant confirming Mr Chuah’s abstinence, when his assertion to that affect had not been challenged.

The panel determined that Mr Chuah’s convictions for driving a motor vehicle whilst unfit through alcohol and common assault were serious breaches of the standards expected of registered nurses. The panel took the view that Mr Chuah’s convictions damaged the public confidence in the nursing profession and that such behaviour was wholly unacceptable. Mr Chuah put patients at unwarranted risk of harm, brought the profession into disrepute and breached fundamental tenets of the profession.

The panel found that Mr Chuah had provided no evidence of insight into his behaviour and sought to minimise the seriousness of the offences. Mr Chuah explained the reason he drove was because it was late at night and his brother required him to get some alcohol and there were no buses. The panel also concluded that public confidence in the nursing profession would not be maintained if there was no finding of impairment. Therefore the panel determined that Mr Chuah’s fitness to practise was currently impaired.

In determining a sanction, the panel concluded that Mr Chuah’s convictions were fundamentally incompatible with him remaining on the nursing and Midwifery Council register. As such the panel held that the only appropriate and proportionate sanction was a striking off order.

Mr Chuah appealed this decision and the case was heard at the High Court. The court dismissed the appeal and held that the panel at the NMC hearing had been fully entitled to conclude that Mr Chuah’s current fitness to practise was impaired by reason of his convictions for the reasons given in their decision.

Counsel for the NMC relied on the decision in Bolton v Law Society ([1994] 1 WLR 512). In that case, the court endorsed the principle that it would require a very strong case to interfere with a sentence imposed by a disciplinary committee. Counsel added that the apparent harshness of a sanction could be explained by the primary objects of sanctions imposed by disciplinary committees, one object being to ensure that the offender did not repeat the offence and the other being to maintain the standing of the profession.

The court outlined the approach to an appeal against a sanction in two parts. First, although the court should accord an appropriate measure of respect to the judgement of the panel, it should not defer to that judgement more than was warranted by the circumstances. The court should decide whether the sanction was appropriate and necessary in the public interest or excessive or disproportionate, Ghosh v General Medical Council ([2001] UKPC 29, [2001] 1 WLR 1915). Second, the court would be entitled to interfere if it concluded that the sentencing decision was “clearly inappropriate” Salsbury v Law Society ([2008] EWCA Civ 1285, [2009] 1 WLR 1286).

The court held that although the sanction on Mr Chuah was severe it was not wrong in principle, “clearly inappropriate” or “plainly disproportionate”. The position might have been different if Mr Chuah had been a nurse of previously impeccable character and had been able to show that the offences were entirely exceptional. However, that was not the case as Mr Chuah had a previous drink driving conviction. The appeal was dismissed.