Augustine v The Nursing and Midwifery Council

A professional disciplinary panel’s principal purpose is to preserve public confidence in the profession, rather than to punish criminal conduct. On a statutory appeal, the High Court corrects material errors of fact or law and exercises a secondary judgment on the application of legal principles to the facts. Conduct unrelated to professional practice may nevertheless justify severe regulatory action where it compromises the profession’s reputation or public trust. The panel must assess the weight of relevant factors, including dishonesty, repetition, insight, rehabilitation and personal circumstances. Its reasons are sufficient if, read in context, they intelligibly address the substantial issues and explain why the sanction was imposed.

The appellant, a registered nurse, appealed against a Conduct and Competence Committee decision striking him off the nursing register after his conviction for perverting the course of justice. The Committee also made an interim suspension order pending any appeal. The conviction arose from repeated lies to the police after a road traffic accident, including arranging for another person falsely to claim that he had been supervising the appellant while driving.

The appellant argued that the Committee had given insufficient weight to the non-professional nature of the offence, his good character, the effect of striking off, his alleged insight and the guidance in Manzur v General Medical Council. The central issues were whether the Committee erred in its assessment of the relevant factors, failed to give adequate reasons, or imposed a disproportionate sanction.

1. Appeal dismissed. The Committee was entitled to strike the appellant off and to make an interim suspension order once it had concluded that striking off was necessary and proportionate.
2. The principal purpose of professional discipline is the preservation and maintenance of public confidence in the profession. That function differs from the criminal court’s function. On a statutory appeal, the High Court corrects material errors of fact and law and exercises a distinctly secondary judgment on the application of legal principles to the facts: Fatani and Raschid v General Medical Council [2007] EWCA Civ 46.
3. The fact that the conviction was unrelated to nursing practice did not prevent it from justifying regulatory action. Paragraph 7.1 of the NMC Code recognised that conduct compromising the profession’s reputation could call registration into question even where it was not directly connected with professional practice. The Committee had taken the point into account when rejecting a conditions of practice order.
4. The Committee was entitled to find that the conduct was deliberate, repeated over two months and involved payment to an accomplice. It could take account of the appellant’s limited insight, failure promptly to inform his employer and lack of evidence that he had studied the relevant Code provisions. The appellant’s good character, references and personal and family consequences had also been considered.
5. The Committee’s reasons were adequate. Read against the submissions and hearing, they intelligibly addressed the substantial points and explained why striking off was considered proportionate, including the seriousness of the dishonesty, the Code breaches and the risk to public confidence: Re Poyser and Mills Arbitration [1964] 2 QB 467; UCATT v Brain [1981] IRLR 224.
6. Manzur v General Medical Council [2001] UKPC 55 and Lowe v General Osteopathic Council [2007] EWHC 2839 (Admin) did not require comparison of sanctions in other cases. The question was whether this Committee had erred in law or fact, having regard to its expertise and the court’s secondary role.

High Court (Administrative Court): appeal from the Conduct and Competence Committee of the Nursing and Midwifery Council, which had ordered that the appellant be struck off the register and made an interim suspension order on 27 August 2008. The appeal was dismissed.