Robson, R (on the application of) v Nursing and Midwifery Council

On an appeal against a professional regulator’s sanction, the court must respect the specialist panel’s assessment but may substitute its own judgment where the sanction is wrong. A panel may consider the potential seriousness of medication errors even where no actual patient harm occurred. Under Articles 29 and 30 of the Nursing and Midwifery Order 2001, an initial 12-month suspension is not the maximum possible overall sanction, because it may be reviewed and extended. It therefore need not be reserved for the most serious cases. The panel must assess whether a caution or conditions of practice would adequately protect patients and maintain confidence in the profession.

The claimant appealed under Article 38 of the Nursing and Midwifery Order 2001 against the Nursing and Midwifery Council’s decision to suspend her for 12 months. The Conduct and Competence Committee had found six charges of professional incompetence proved and had found her fitness to practise impaired. There was no challenge to those findings.

The appeal concerned whether the sanction was excessive, having regard to the Council’s indicative sanctions guidance, the claimant’s mitigation, insight, remedial efforts, references and testimonials, and the absence of actual patient harm. The central issue was whether the panel had erred in imposing suspension rather than a caution or conditions of practice order.

1. Appeal dismissed. The Committee’s decision disclosed no error of fact or law. Its assessment was entitled to considerable weight.
2. The court applied the established approach to appeals against professional sanctions. The panel is concerned with public protection, professional standards and public confidence rather than punishment. Its specialist judgment deserves respect, although the court is not limited to conventional review and may exercise a secondary judgment where persuaded that the decision was wrong.
3. Article 29 of the Nursing and Midwifery Order 2001 provided the relevant sanctions: a caution, conditions of practice, or suspension for up to one year. Article 30 made suspension and conditions of practice subject to review and permitted extension. Accordingly, a 12-month suspension was the maximum available at that stage, but was not the maximum overall sanction and did not have to be reserved for the most serious cases.
4. The panel was entitled to take account of the potential harm arising from the incorrect administration of medication, notwithstanding that no actual harm had resulted. It was also entitled to find that the claimant had limited insight, that her improvement had not been sustained, and that the references, testimonials and courses provided limited assistance.
5. The panel had properly considered the guidance and explained why neither a caution nor workable conditions of practice would adequately address fundamental and continuing incompetence. The appeal was dismissed.

• High Court (Administrative Court): dismissed the appeal against the Nursing and Midwifery Council Conduct and Competence Committee’s decision of 29 March 2010 to impose a 12-month suspension.