Christian v Nursing and Midwifery Council

On an appeal under Civil Procedure Rules 1998, incompetence or an omission by legal representatives is insufficient by itself. The appellant must show conduct so unreasonable that it led to identifiable errors or procedural irregularities which rendered the hearing unfair or the decision unjust.

An appellate court should be slow to interfere with a professional disciplinary sanction. A striking-off order may be justified by dishonesty alone where the regulator reasonably concludes that it is necessary to protect the public, maintain confidence in the profession and uphold proper standards.

The claimant, a former registered nurse, appealed against the decision of the Nursing and Midwifery Council Conduct and Competence Committee dated 9 July 2009. The Committee had found misconduct, impairment of fitness to practise and imposed a striking-off order with interim suspension.

She did not challenge the misconduct findings. She argued that her representatives had failed to place before the Committee evidence of her attendance at a nurse-prescribing course, making the hearing unfair, and that the sanction for dishonesty was disproportionate. The central issues were whether the alleged omission caused an unjust hearing and whether the sanction should be set aside.

1. The appeal was dismissed. The court applied the statutory and procedural test that an appeal succeeds only where the lower decision was wrong or unjust because of a serious procedural or other irregularity.

2. Following the approach identified in R (Aston) v Nursing & Midwifery Council [2004] EWHC 2368 Admin, mere incompetence by an advocate is insufficient. The conduct must be so unreasonable that no reasonable advocate could have acted in that way, and it must have caused identifiable errors or irregularities rendering the process unfair or the conclusion unsafe or unjust.

3. The omission concerning the nurse-prescribing course did not satisfy that test. The claimant had legal representation and opportunities to present her case. The available evidence also showed incomplete attendance and failure on parts of the course, so disclosure would not necessarily have produced a different result. The representatives’ decision not to rely on the material was not shown to be Wednesbury unreasonable.

4. The court was slow to interfere with the Committee’s sanction. Applying the principle stated in McCoan v General Medical Council [1964] 1 WLR 1107, the specialist disciplinary body was best placed to assess the seriousness of professional misconduct. The dishonesty charge, considered alone, provided ample justification for impairment and striking off. The sanction addressed the risk of repetition, patient protection, public confidence and proper professional standards.

5. The claimant therefore had a fair hearing and could not show that the alleged omission rendered the process unfair or unjust. Even if the matter were remitted, the result would have been the same.

• High Court (Administrative Court): The appeal against the Nursing and Midwifery Council Conduct and Competence Committee’s order of 9 July 2009 was dismissed.