Chandrasekera v Nursing and Midwifery Council

An appeal from a professional disciplinary sanction is by way of rehearing, but the court must give appropriate weight to the specialist tribunal’s decision. The court may interfere where the sanction is excessive, disproportionate, outside the range of reasonable decisions or clearly wrong.

In deciding sanction, a regulatory tribunal must balance the registrant’s interests and mitigation against protection of the public, professional standards and public confidence. The seriousness of the criminal sentence is not necessarily a reliable measure of the offence’s regulatory significance. A general principle that a practitioner convicted of a serious offence should ordinarily complete the sentence before resuming practice may be considered, but it does not fetter the tribunal’s discretion.

The appellant, an experienced nurse, pleaded guilty to manslaughter on grounds of diminished responsibility after killing her husband during a period of serious depressive illness. She received a three-year community punishment order and subsequently returned to nursing under conditions, which were later lifted.

The Nursing and Midwifery Council’s Conduct and Competence Committee found that her fitness to practise was impaired and ordered that she be struck off. The impairment finding was not challenged. The appeal concerned whether striking off was excessive, disproportionate or clearly wrong, particularly in light of the appellant’s mitigation, psychiatric history, satisfactory subsequent work, the earlier interim decisions and the effect on public confidence in the profession.

1. The appeal was dismissed. The statutory appeal was by way of rehearing, but the court had to give the specialist disciplinary tribunal such weight as was appropriate to its expertise, its assessment of evidence and its professional judgment. The court could interfere only if the sanction was excessive, disproportionate, outside the range of reasonable decisions or clearly wrong. This approach was drawn from Meadow v General Medical Council [2007] QB 462 and related authorities.
2. The Committee was entitled to treat the appellant’s conduct as fundamentally incompatible with continued registration. It was required to consider both the particular circumstances, including diminished responsibility, good nursing history, testimonials and absence of clinical concerns, and the wider need to protect the reputation and confidence of the profession. The regulatory purpose was not retributive punishment. The seriousness of the criminal sentence was not determinative.
3. The Committee had not treated every manslaughter conviction as requiring striking off. Its reasons showed that it considered the appellant’s individual conduct and circumstances, and did not regard Fleischmann v General Medical Council as binding. That case supplied a useful general principle that a practitioner convicted of a serious offence should ordinarily complete the sentence before resuming practice, subject to plainly justifying circumstances.
4. The Committee’s comments about future risk were unwise. If risk had materially influenced sanction, cogent evidence would have been required, particularly given the appellant’s satisfactory return to work and psychiatric improvement. However, the Committee expressly stated that impairment was established without reliance on risk, and the judge concluded that the sanction rested on the seriousness and professional implications of the conduct.
5. The earlier decisions permitting a return to work did not bind the final Committee, which had heard the full case. The Committee was entitled to conclude that protection of professional confidence outweighed the appellant’s personal hardship. The sanction was therefore not excessive, disproportionate or clearly wrong.

The judgment does not state any earlier appellate decision in this litigation. The appeal was brought to the High Court under article 38 of the Nursing and Midwifery Order 2001 against the Conduct and Competence Committee’s striking-off decision.