Kituma v Nursing and Midwifery Council (Rev 1)

On an appeal from a professional disciplinary tribunal, the court should not conduct a fresh fact-finding exercise. It should interfere only for material error of fact, error of law, failure to consider relevant matters, consideration of irrelevant matters, or a conclusion that was not reasonably open to the tribunal.

Questions of impairment and sanction require a distinctly secondary judgment. Particular weight must be given to the specialist tribunal’s assessment of professional standards, public confidence and risk to patients. An isolated episode may justify an adverse fitness-to-practise finding or striking-off order. Lack of insight and refusal to acknowledge serious failings may properly indicate continuing risk, especially where practical and enforceable conditions of practice cannot be formulated.

The claimant, a registered midwife, appealed under article 38 of the Nursing and Midwifery Order 2001 against a Conduct and Competence Committee decision. The Committee found five misconduct charges proved, found that her fitness to practise was impaired, and imposed a striking-off order.

The charges concerned clinical management of a labour and delivery, including the performance of an episiotomy, excessive traction on the umbilical cord, failure to detect and report a post-partum haemorrhage, leaving the patient during the third stage of labour, and loss of confidential records. The central issues were whether the findings were open to the Committee, whether impairment was established, and whether striking off was proportionate.

1. Appeal dismissed. The Committee’s factual findings were reasonably open to it on the evidence. The court would not resolve conflicts between witnesses or undertake a fresh fact-finding exercise. No material error of fact or law was shown.
2. The Committee was entitled to regard the clinical failings as serious departures from applicable professional standards. The evidence supported findings concerning the lateral episiotomy, excessive traction, post-partum haemorrhage and the claimant’s absence during the third stage of labour. The loss of medical records and correspondence on a train was also a serious failure to protect confidential information.
3. On impairment, the court exercised a distinctly secondary judgment and gave primacy to the specialist tribunal’s assessment. The Committee had applied the question whether the claimant was suitable to remain on the register without restriction. It had considered her otherwise good record, but was entitled to attach substantial weight to her lack of insight and refusal to acknowledge the failings. The decisions in Silver v GMC and Bijl v GMC did not establish that misconduct arising from an isolated episode could never impair fitness to practise.
4. On sanction, the Committee had followed the Indicative Sanctions Guidance and considered sanctions in increasing severity. Striking off was not outside the range reasonably open to it. Public confidence, patient safety and the continuing risk associated with the claimant’s lack of insight were legitimate considerations. The absence of later complaints did not determine the issue.
5. A conditions-of-practice order was not shown to be workable or enforceable. The proposed conditions depended on appropriate supervision, but the claimant worked as an agency midwife and no practicable supervising employer or alternative supervisory arrangement had been established.
6. The evidence entitled the Committee to find significant physical harm, exposure to further risk and distress. In any event, a serious departure from relevant professional standards was an independent indicator supporting striking off.

• Nursing and Midwifery Council Conduct and Competence Committee: on 10 May 2007, with reasons confirmed by letter dated 16 May 2007, found five misconduct charges proved, found impairment of fitness to practise, and imposed a striking-off order.
• High Court (Administrative Court): dismissed the appeal under article 38 of the Nursing and Midwifery Order 2001.