Sam, R (on the application of) v United Kingdom Central Council For Nursing Midwifery & Health

Judicial review does not provide an appeal on the merits from a professional disciplinary decision. A finding is not irrational merely because the evidence could reasonably have supported either conclusion; intervention requires a decision beyond the bounds of rationality. Where a statutory appeal exists, judicial review cannot be used to exercise the appellate function. A disciplinary body may perform both prosecutorial and adjudicative functions without necessarily breaching Article 6, provided those functions are independently discharged, properly separated and insulated from one another. The application for permission to appeal was refused.

The applicant, an experienced midwife, was dismissed by her employing hospital and later found guilty of professional misconduct by the United Kingdom Central Council for Nursing, Midwifery and Health. She was cautioned after the Council found that she had supplied false information concerning the care of a premature infant, applying the criminal standard of proof.

Sir Richard Tucker, sitting in the Administrative Court on 30 November 2000, refused permission to seek judicial review. The applicant sought permission to appeal, arguing that the Council’s decision was irrational and that the Council’s combined prosecutorial and adjudicative functions infringed Article 6. The Court of Appeal considered the scope of any statutory appeal under section 13 of the Nurses, Midwives and Health Visitors Act 1992 and the independence required by Article 6.

1. Permission refused. Lord Justice Sedley held that the applicant had no realistic prospect of establishing that the Council’s findings were irrational. The material before the court could have supported a different conclusion, but that did not make the Council’s conclusion irrational. The assessment of whether the allegations had been proved beyond reasonable doubt belonged to the Council, not the reviewing court.

2. The court distinguished the supervisory jurisdiction of judicial review from a statutory appeal on the merits. Section 13 of the Nurses, Midwives and Health Visitors Act 1992 provided an appeal to the High Court against removal from the register or removal or alteration of an entry. It was arguable that entering a caution altered an entry, but Lord Justice Sedley left that question undecided. Even if no statutory appeal existed, judicial review could not be used to perform the appellate assessment of the evidence.

3. The fact that a disciplinary body is responsible both for bringing and deciding disciplinary proceedings does not, by itself, breach Article 6. The relevant safeguards are that the prosecuting and adjudicating functions are split and insulated from one another, and that prosecution is discharged independently without collusion with the adjudicating limb. Nothing in this case indicated confusion between those functions or any resulting lack of impartiality.

4. The court also refused to grant permission directly to seek judicial review in place of the lower court’s decision, since the claim had no realistic prospect of success and would expose the applicant to substantial costs.

• Court of Appeal (Civil Division) Refused permission to appeal and refused to grant direct permission to seek judicial review.
• Administrative Court, Queen’s Bench Division On 30 November 2000, Sir Richard Tucker, sitting as a Deputy High Court Judge, refused permission to seek judicial review of the UKCC’s disciplinary decision.