Kituma v Nursing and Midwifery Council

In professional disciplinary proceedings, a finding of misconduct does not itself determine present fitness to practise. The tribunal must make a separate assessment of suitability to remain on the register without restriction. Evidence of current skills, remediation, subsequent practice and the likelihood of repetition may be relevant, but its weight is for the specialist tribunal. Continuing lack of insight into serious failings may support impairment and a continuing risk to patients. On appeal, the tribunal’s specialist assessment of impairment and sanction attracts primacy. Intervention is justified only for legal misdirection, irrelevant or ignored material, or a wholly perverse conclusion. A conditions of practice order need not be substituted where enforceable conditions cannot realistically be formulated or supervised.

Miss Kituma, a registered midwife, appealed against a decision of the Nursing and Midwifery Council’s Conduct and Competence Committee. The Committee found misconduct, impairment of fitness to practise and imposed a striking-off order. King J dismissed her appeal in the Administrative Court. The further appeal was confined to impairment and sanction.

She relied on testimonial evidence concerning her subsequent practice and argued that the matter should be remitted so that conditions of practice could be considered. The central issues were whether the Committee had properly considered the evidence, whether striking-off was a lawful and proportionate sanction, and whether the judge was required to refer the issue back to the Committee.

1. Appeal dismissed. Richards LJ delivered the judgment, with Mummery LJ and Rimer LJ agreeing. The Committee’s findings on impairment and sanction, and King J’s decision upholding them, were sustained.
2. Under Part V of the Nursing and Midwifery Order 2001, fitness to practise concerns suitability to remain on the register without restriction. A finding of misconduct requires a separate assessment of impairment. The principles discussed in Cohen v GMC [2008] EWHC 581 (Admin) and Azzam v GMC [2008] EWHC 2711 (Admin) permitted consideration of current skills, remedial steps and the likelihood of repetition. The approach was consistent with R (Campbell) v GMC [2005] EWCA Civ 250, under which material may sometimes be relevant both to impairment and mitigation.
3. The Committee expressly considered the evidence of Miss Kituma’s subsequent clinical work and gave it appropriate weight. Its concern about her continuing lack of insight and failure to accept serious professional failings was capable of supporting impairment and a continuing risk to patients. The weight of the evidence was pre-eminently a matter for the specialist Committee. The different result from Azzam reflected the different facts and the lesser quality of the evidence in the present case.
4. At sanction stage, the specialist tribunal’s assessment of the measures required to maintain professional standards and public confidence attracted primacy. The Committee considered the sanctions in increasing severity, applied the indicative guidance, weighed the mitigation, and gave sufficient reasons for rejecting caution, conditions of practice and suspension before imposing striking-off.
5. A conditions of practice order was not realistically enforceable. Miss Kituma worked as an agency midwife, with no supervising employer identified, and there was no evidence that an alternative supervisor could practicably be allocated. The judge was entitled to uphold the Committee’s conclusion.
6. The suggested power under the Civil Procedure Rules 52.10(2)(b) did not create a duty to remit the matter merely because the judge had considered possible conditions but could not formulate them. Since no error in the Committee’s approach had been shown, referral back was unnecessary. The court also declined to decide whether charge 2(b) supplied an additional justification, because the Committee’s stated reasons were sufficient.

1. Court of Appeal (Civil Division): dismissed the appeal against the Administrative Court’s decision. [2010] EWCA Civ 154.
2. High Court of Justice, Queen’s Bench Division, Administrative Court: King J dismissed the appeal against the Committee’s findings of impairment and its striking-off order.
3. Nursing and Midwifery Council Conduct and Competence Committee: found misconduct and impairment of fitness to practise and imposed a striking-off order.