Sharp v Nursing and Midwifery Council

A disciplinary tribunal must not rely on separate alleged misconduct that was never charged or fairly put to the registrant when selecting a sanction. If such matters are to affect sanction, they must be raised in sufficient time and, if disputed, proved to the required standard. A tribunal’s finding about the credibility or honesty of evidence relating to a charged allegation is different: it may be relevant to the decision on that allegation. Where an unlawful or materially flawed approach may have influenced sanction, the appellate court should ordinarily remit the matter to the specialist disciplinary tribunal rather than substitute its own sanction.

The claimant, a registered nurse, appealed under Article 38 of the Nursing and Midwifery Order 2001 from a Conduct and Competence Committee decision. The committee found proved dishonesty in working bank shifts while claiming sickness absence and imposed a one-year suspension.

The claimant challenged the proportionality of the sanction and relied on admissions and further material. At the hearing, a new point was raised: the committee had relied on four alleged January 2007 shifts, although those matters had not been charged or put to him. The central issue was whether the committee had been entitled to take those alleged further incidents into account when selecting sanction.

1. Appeal allowed. The committee’s sanction decision could not stand because it appeared to have been significantly influenced by four alleged further occasions of dishonest conduct in January 2007.
2. The committee had discovered the alleged January conduct from an exhibit, without discussing it with the case presenter or legal assessor. The conduct was not charged, had not been described in the witness statement, and had not been raised with the registrant. It was therefore a serious error to take it into account in deciding sanction.
3. The court distinguished Nicholas-Pillai v GMC [2009] EWHC 1048 (Admin). That case permitted a panel, when assessing fitness to practise, to consider its own finding that charged record-keeping conduct was dishonest, even though the precise dishonesty had not been separately pleaded. It did not authorise reliance at sanction stage on wholly separate, uncharged conduct.
4. Shankar v General Medical Council [2006] EWHC 2503 (Admin) concerned the use of a finding that records had been falsified to assess the doctor’s veracity on the central charged issue. It did not support taking uncharged matters into account when imposing sanction.
5. Under Article 38(3) of the Nursing and Midwifery Order 2001, the court could substitute a sanction or remit the case. Remittal was appropriate because the specialist committee was the primary body for determining both facts and sanction, and the claimant also sought to rely on admissions, insight and recent testimonials.

The case was remitted to the Conduct and Competence Committee with directions that the alleged January occasions must not be considered unless formally and fairly put to the registrant in due time and, if denied, proved to the required standard. There was no order as to costs.

• High Court (Administrative Court): allowed the appeal under Article 38 of the Nursing and Midwifery Order 2001 and remitted the sanction decision to the Conduct and Competence Committee with directions.
• Nursing and Midwifery Council Conduct and Competence Committee: found the charges proved, determined that fitness to practise was impaired, and imposed a one-year suspension.