Parkinson v Nursing and Midwifery Council

A fitness-to-practise panel’s decision may be challenged for serious procedural irregularity or because its decision was wrong on the material before it. Dishonesty by a nurse places the practitioner at severe risk of erasure, particularly where the practitioner does not attend the hearing to demonstrate remorse, acknowledge the dishonesty and provide reassurance against repetition. A minor factual error will not invalidate the decision where it could not have affected the outcome. The possibility that a different sanction might have been imposed if the practitioner had attended does not establish that erasure was unlawful.

The appellant, a registered mental health nurse, appealed against a Fitness to Practise Panel decision directing his erasure from the professional register. He had worked while certified as sick from his principal nursing employment and had received sick pay to which he was not entitled. He did not attend the disciplinary hearing. The Panel found dishonesty, current impairment of fitness to practise and imposed erasure.

The appellant accepted that the proceedings had not been procedurally unfair and accepted that the Panel had made a minor factual error. The central issue was whether, on the material before it, the Panel’s findings and sanction were wrong.

1. Appeal dismissed. The permissible grounds were serious procedural irregularity undermining fairness or error in the Panel’s decision. No procedural irregularity was established, and the decision was not wrong on the evidence available to the Panel.
2. The Panel was entitled to find dishonesty. It had applied the customary Ghosh test to the appellant’s conduct, including his completion of sickness certificates while working elsewhere. Although the Panel might have expressed its reasoning differently had the appellant attended, the basic facts made its conclusion of dishonesty inevitable on the material before it.
3. The Panel was also entitled to find current impairment. The conduct was inconsistent with the integrity, honesty and propriety expected of a nurse. The appellant had not acknowledged the seriousness of the charges, shown remorse, made amends or addressed the risk of repetition.
4. The Panel’s reference to an unsupported comment about medication and a warning was a minor factual error. It could not have affected the findings of dishonesty, impairment or sanction.
5. Erasure was stern but lawful. Dishonesty by a nurse creates a severe risk of erasure because the regulator must maintain public confidence in the profession. A practitioner who does not attend to demonstrate remorse, recognise the dishonesty and give an undertaking against repetition loses the small possibility of persuading the Panel to impose a more lenient sanction. The later remorse expressed before the court could not make the Panel’s decision wrong.
6. The appellant was ordered to pay the respondent’s appeal costs, assessed at £4,834. The judgment noted that an application for restoration to the register after five years was the only future route identified.

• Fitness to Practise Panel: On 4 August 2009, the Panel found dishonesty and current impairment of fitness to practise and directed erasure from the register.
• High Court (Administrative Court): The appeal against the Panel’s decision was dismissed. The appellant was ordered to pay costs assessed at £4,834.