Ige v Nursing and Midwifery Council

An appellate court reviewing a professional disciplinary decision must apply the statutory appeal test and give appropriate weight to the specialist tribunal’s professional judgment. There is no fixed legal test for current impairment of fitness to practise. A panel may weigh the seriousness of past dishonesty, insight, remorse, repetition and current clinical performance as it considers appropriate. Impairment may be established on public-interest grounds even where the misconduct was unrelated to clinical practice or occurred before registration. In sanctioning dishonesty, the central considerations are public confidence and professional standards rather than punishment. Mitigation, including personal hardship and the passage of time, may therefore carry reduced weight. Errors in treating absent references or lack of an early guilty plea as aggravating factors will not necessarily invalidate a sanction where the overall reasoning remains proportionate.

The claimant, a registered nurse, appealed under article 38(1) of the Nursing and Midwifery Order 2001 against a Conduct and Competence Committee decision finding her fitness to practise currently impaired by convictions for dishonesty arising from a mortgage fraud. The Panel imposed a striking-off order and an interim suspension order; the appeal against the interim order was abandoned.

The claimant accepted the convictions but argued that the Panel had failed to apply the correct approach to current impairment, had overlooked the absence of clinical concerns or repetition, and had imposed a disproportionate sanction without proper regard to mitigation. The central issues were whether the Panel’s impairment finding and striking-off decision were wrong or unjust under CPR 52.11(3), and whether the Panel had made material errors in its reasoning.

1. Appeal dismissed. The appeal under article 38(1) was governed by CPR 52.11(3). The court could interfere if the Panel’s decision was wrong or unjust because of a serious procedural or other irregularity, but it had to exercise a distinctly secondary judgment on professional matters and sanction.
2. There was no fixed legal test for impairment. The Panel was entitled to decide what weight to give the relevant factors. Intervention would be justified if an obviously relevant factor were ignored in a way that undermined the judgment, but not merely because the appellate court would attach different weight to it.
3. The Panel was entitled to find current impairment on public-interest grounds. Dishonesty may undermine confidence in the profession even where it is unconnected with clinical performance and occurred before registration. The seriousness of the offending and the claimant’s continuing failure to recognise the essential dishonesty were properly treated as significant. The absence of clinical concerns and the absence of repetition were relevant but matters for the Panel to weigh.
4. The Panel was entitled to regard insight and remorse as relevant both to impairment and sanction. Self-referral did not itself establish remorse, and the evidence supported the conclusion that the claimant continued to minimise the offending.
5. In deciding sanction, the Panel properly considered the public interest, the claimant’s interests, mitigation and aggravating factors, and followed the Indicative Guidance’s sequence of sanctions. Striking off was a proportionate professional measure aimed at maintaining public confidence and standards, rather than punishment.
6. The Panel wrongly treated the absence of current employer information, references and an early guilty plea as aggravating matters. Those errors did not undermine the overall judgment because the decisive factors were the gravity of the deliberate fraud and the claimant’s alarming lack of insight and remorse. The Article 8 proportionality ground added nothing beyond the requirement to balance the registrant’s interests against the public interest. Costs were left for written submissions and determination on the papers.

• Conduct and Competence Committee of the Nursing and Midwifery Council: On 18 April 2011 found current impairment arising from the claimant’s criminal convictions, imposed a striking-off order and made an interim suspension order for 18 months.
• High Court (Administrative Court): The appeal against the substantive decision was dismissed. The appeal against the interim suspension order was no longer pursued.