Hamilton v Nursing & Midwifery Council

An appellate court reviewing a professional disciplinary tribunal must apply the statutory appeal grounds and respect the tribunal’s evaluative judgment. It may interfere where the decision was wrong or procedurally unjust, but it should not substitute its own view merely because another conclusion is possible. Intervention is justified only where the tribunal has exceeded the generous ambit within which reasonable disagreement is possible. A tribunal may rely on consistent expert evidence of a relapsing condition and lack of insight, even where the individual is not acutely ill at the time of assessment. The relevant question is whether the evidence provided a proper basis for the tribunal’s public-protection decision.

The appellant, a nurse and midwife, had been suspended from the professional register because her fitness to practise was considered seriously impaired by a physical or mental condition. Earlier proceedings concerning the refusal to terminate the suspension had been dismissed by the High Court and the Court of Appeal. The appellant later applied to the Nursing and Midwifery Council’s Health Committee for termination of the suspension. The Committee refused the application, relying on medical evidence concerning diagnosis, lack of insight, relapse risk, monitoring, support and professional relationships. She appealed under CPR Part 52, contending that the decision was wrong. The central issue was whether the Committee had properly exercised its discretion on the evidence before it.

Appeal dismissed. The court held that the appeal was governed by CPR Part 52.11(3). The appellant relied on the ground that the Committee’s decision was wrong and did not allege procedural irregularity.

1. The appellate court’s task was limited. Applying Tanfern Ltd v Cameron-Macdonald [2000] 1WLR 1311, it could interfere only if the Committee had exceeded the generous ambit within which reasonable disagreement was possible. It was not entitled simply to substitute its own assessment.
2. There was a clear evidential basis for the Committee’s conclusions. The medical evidence consistently supported the diagnosis of bipolar affective disorder or a chronic relapsing condition, although the appellant was not acutely ill when examined. Dr Moore’s evidence supported the Committee’s concerns that the appellant might not recognise a relapse, that effective monitoring would be difficult, and that adequate local support was lacking.
3. The appellant’s later report from Dr Smith did not undermine the decision. It was not before the Committee, was expressly tentative, and did not address the critical issue of chronic vulnerability to relapse. It could be placed before the Committee when the continuation of the suspension was considered.
4. The Committee was entitled to accept the diagnosis and to treat the resulting lack of insight as central to its public-protection assessment. The reasoning of Crane J in the earlier proceedings was equally applicable to the later decision.

The appeal was dismissed. The respondent was awarded costs, assessed in the sum stated in its schedule.

1. High Court (Administrative Court): Crane J dismissed the appellant’s earlier judicial review challenge to the UKCC Health Committee’s refusal to terminate the suspension on 20 December 2002.
2. Court of Appeal: the appellant’s appeal on Article 1 of Protocol 1 grounds was dismissed on 23 October 2003.
3. High Court (Administrative Court): the present appeal against the NMC Health Committee’s decision of 21 October 2005 was dismissed.