Musonza v Nursing and Midwifery Council

A professional regulator must make an informed and proportionate decision on sanction. Where a registrant faces possible striking-off for serious dishonesty, has substantial mitigation, and is unrepresented or vulnerable, fairness may require clear advice about legal representation and an oral hearing. A paper meeting may be procedurally unfair where the registrant’s evidence requires explanation and exploration.

Evidence rules making a conviction conclusive proof of the conviction do not prevent evidence about the circumstances, extent or culpability of the conduct. A panel must consider relevant mitigation, balance the public interest against the registrant’s interests, and give reasons explaining the weight attached to the relevant factors. Published decisions may be used cautiously as consistency indicators, although they do not create binding precedents.

Florence Musonza appealed under article 38 of the Nursing and Midwifery Order 2001 against a Conduct and Competence Committee decision striking her name from the nursing register. The decision followed two convictions for dishonesty committed before she qualified, involving a false passport and NHS student bursary payments.

Ms Musonza admitted the convictions and impairment but did not request an oral hearing. The Committee determined the case at a private meeting and imposed a striking-off order. The appeal concerned procedural fairness, the evidential effect of the convictions, the treatment of mitigation, and the proportionality of the sanction.

1. Appeal allowed and matter remitted. The Committee’s procedural decision of 31 January 2011 and its striking-off decision of 4 March 2011 were set aside because the process was procedurally unfair. The case was remitted to the Committee, with necessary case-management directions, to decide afresh whether it should be dealt with at a hearing or meeting and, thereafter, to determine the allegations.
2. Fairness required more than treating Ms Musonza’s waiver of an oral hearing as informed consent. She was vulnerable, unrepresented and faced a serious risk of striking-off. Her mitigation was extensive and involved disputed or unexplored matters concerning the circumstances and degree of dishonesty. The referral letter did not adequately explain the importance of legal advice, representation and attendance. The Committee should have considered directing an oral hearing of its own motion.
3. The missing parts of the First-tier Tribunal’s decision were potentially prejudicial because that decision formed a significant part of the defence and mitigation. The legal assessor should also have directed the Committee on the proper approach to sanction and mitigation under rule 31 and recorded the advice given.
4. Rule 31 of the Nursing and Midwifery Council (Fitness to Practise) Rules Order 2004 made the certificates conclusive proof of the convictions and admitted the findings of fact on which they were based. It did not prevent either party from adducing evidence about matters surrounding the convictions, the extent of the dishonesty, or the registrant’s state of mind. Rule 31(3) prohibited evidence rebutting the fact of conviction, except as to identity; it did not prohibit evidence showing that the conduct was less serious than alleged.
5. The Committee failed to consider material mitigation, including the age of the offences, their commission before qualification, Ms Musonza’s personal circumstances, her nursing history, positive reference, absence of repetition, and the possible lower level of culpability. Its reasons did not explain the balancing of the public interest, the registrant’s interests, and aggravating and mitigating factors required by the sanctions guidance.
6. Previous Committee sanction decisions and High Court judgments may, in limited and appropriate cases, be referred to as indicators of consistency and proportionality. They are not binding precedents and must be examined cautiously in light of factual differences. That issue did not require final determination because the original decision was being remitted.

• High Court (Administrative Court): appeal from the Conduct and Competence Committee’s private-meeting decision of 31 January 2011 and striking-off decision promulgated on 4 March 2011. The decisions were set aside and the matter remitted to the Committee for redetermination.