Ballesteros v Nursing & Midwifery Council

On an appeal from a professional disciplinary tribunal, the court must respect the tribunal’s specialist judgment, particularly on professional standards and risk to the public. The court has full jurisdiction, but should interfere only where the tribunal’s decision is shown to be wrong or unreasonable. Fitness to practise proceedings are protective and look principally to present and future fitness, although past conduct is relevant to assessing future risk. Repeated serious dishonesty, inadequate insight and an insufficiently demonstrated prospect of remediation may justify erasure from a professional register, even where the practitioner is competent, has an otherwise good history, acted under substantial personal pressure and has made restitution. A sanction will not be disproportionate merely because it has severe consequences for the practitioner. Article 8 of the European Convention on Human Rights was unlikely to be engaged by the indirect effect of erasure on private or family life; in any event, public-safety considerations would justify the interference.

A Conduct and Competence Committee of the Nursing & Midwifery Council found that Mrs Julie Ballesteros had committed two sequences of dishonest conduct while employed as a nurse. She had worked elsewhere while certified as unfit for work and later created false timesheets to obtain payment. She admitted the misconduct and was convicted of ten counts of dishonesty in relation to the latter conduct.

The Committee found misconduct, impaired fitness to practise and imposed a striking-off order. Mrs Ballesteros appealed against the findings and sanction, contending that the Committee had failed to give proper weight to her competence, good professional history, remorse, extenuating circumstances and lack of further misconduct. She also relied on Article 8 of the European Convention on Human Rights. The central issues were whether the findings were legally or rationally open to the Committee and whether erasure was justified.

1. Appeal dismissed. The court’s appellate jurisdiction was full, but the court should allow an appeal only where the disciplinary decision had been shown to be wrong. Respect was due to the Committee because it had heard the evidence and was specially qualified to assess professional standards, fitness to practise and appropriate sanctions.
2. The Committee was entitled to find that the admitted conduct amounted to misconduct. Fitness to practise proceedings are directed principally to protecting the public rather than punishing past conduct. Past behaviour remains relevant because it assists the tribunal in assessing present fitness and the risk of repetition. The Committee was entitled to consider the claimant’s incomplete candour with a significant witness and her answers in cross-examination when assessing insight and remediation.
3. The Committee had considered the claimant’s competence, previous good record, remorse, restitution, lack of repetition and serious financial and family pressures. Those factors did not make its conclusion irrational. The second sequence of dishonesty, committed shortly after the first had been detected, was a decisive factor. It supported the conclusion that the risk of future similar misconduct remained too great and that public protection required a finding of impairment.
4. The striking-off order was also rationally open to the Committee. The misconduct was deliberate, repeated over many months and accompanied by concerns about insight and previous attempts to conceal the conduct. The severity of the consequence for the claimant did not make the sanction disproportionate.
5. Article 8 of the European Convention on Human Rights was unlikely to be engaged merely because erasure indirectly affected the claimant’s private or family life. Even if engaged, the interference was justified under Article 8.2 by provisions directed to public safety and the public interest. The appeal was dismissed, with costs in the usual legally aided terms.

The judgment does not state a prior reported judicial decision. The appeal was brought from the striking-off order made by the Conduct and Competence Committee of the Nursing & Midwifery Council on 26 October 2010.