Phillips, R (on the application of) v Nursing & Midwifery Council

On an appeal from a professional disciplinary tribunal, the High Court conducts a rehearing but gives appropriate weight to the tribunal’s advantage in assessing witnesses and to its professional expertise. The court may correct material errors of fact or law and must exercise its own secondary judgment on the application of legal principles.

A practitioner may remain in a professional client relationship through indirect professional contact after direct responsibility has been transferred within the team. Professional boundaries must be maintained at all times, and the relationship must focus exclusively on the client’s needs. Deliberate personal conduct with a vulnerable client, combined with a lack of insight, may justify a finding of misconduct, impairment of fitness to practise and striking off.

Mr Phillips appealed under Articles 29(9) and 38 of the Nursing and Midwifery Order 2001 against a decision of the Nursing and Midwifery Council Conduct and Competence Committee. The Committee found misconduct, impairment of fitness to practise and imposed a striking-off order.

The allegations arose from Mr Phillips’s conduct towards a vulnerable psychiatric patient, including attending a festival with her, sharing a tent and sleeping bags, asking her to kiss him, and failing to communicate relevant information to colleagues. The appeal challenged the patient relationship, evidence, factual findings, investigation, delay, misconduct finding and sanction.

1. Appeal standard. The appeal was governed by CPR Part 52. Under Part 52.11(3), the decision could be overturned only if it was wrong or unjust because of a serious procedural or other irregularity. The court conducted a rehearing, ordinarily on the transcript, but recognised the Committee’s advantage in assessing credibility and reliability. It nevertheless retained jurisdiction to correct material errors of fact or law and to exercise a secondary judgment on the application of the principles. The approach was supported by Gupta v General Medical Council, [2002] 1 WLR 1691, Ghosh v General Medical Council, [2001] 1 WLR 1915, and Raschid v General Medical Council, [2007] 1 WLR 1460.

2. Client relationship. The evidence entitled the Committee to find that the patient remained a client of the community mental health team and therefore of Mr Phillips, despite the transfer of direct responsibility to another nurse. The relevant guidance defined a client to include a person having direct or indirect professional contact with a registered nurse.

3. Professional misconduct. The applicable professional standards required appropriate boundaries at all times and a relationship focused exclusively on the patient’s needs. Personal relationships with vulnerable clients were unacceptable. Mr Phillips knowingly engaged in personal conduct with a vulnerable client while aware of her history of sexual disinhibition and risk of relapse. The Committee was entitled to find misconduct.

4. Evidence and procedure. The Committee was entitled to admit the disciplinary hearing note under Rule 31(1) of the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004, subject to relevance and fairness. Its limitations were apparent, and the material relied upon was either supported by other evidence or accepted by Mr Phillips. There was no unfairness in the investigation or delay.

5. Impairment and sanction. The findings of impairment and the striking-off order were unassailable. The Committee was entitled to regard the conduct as fundamentally incompatible with continued registration, particularly in light of the absence of insight. The appeal was dismissed. The appellant was ordered to pay the respondent’s costs, summarily assessed at £5,000 exclusive of VAT.

• High Court (Administrative Court): appeal dismissed against the Conduct and Competence Committee’s decision dated 23 May 2007.