Fabiyi v Nursing and Midwifery Council

A professional disciplinary hearing may proceed in a registrant’s absence only where the tribunal is satisfied that the absence and any lack of representation are voluntary and informed. Procedural fairness requires particularisation of the alleged dishonest conduct, the relevant state of mind and the evidence relied upon.

Where dishonesty is alleged, the tribunal must identify the conduct charged, decide whether it is dishonest by ordinary standards, and then decide whether the registrant realised that it would be regarded as dishonest. It must consider the registrant’s defence and confine its decision to the charge proved. A decision founded on serious procedural irregularity or an erroneous legal approach may be quashed and remitted, with the impugned allegation excluded from reconsideration.

Mrs Eunice Omolola Fabiyi appealed under article 38 of the Nursing and Midwifery Order 2001 against a decision of the Nursing and Midwifery Council’s Conduct and Competence Committee dated 3 December 2010.

The Committee found that she had dishonestly worked unsupervised agency shifts while on supervised practice, found misconduct and impairment of fitness to practise, struck her off both registers, and imposed suspension. She had admitted the unsupervised working but denied dishonesty. She was absent and unrepresented at the hearing.

The central issues were whether the hearing should have been adjourned, whether the dishonesty allegation and evidence had been adequately particularised, whether the Committee applied the law of dishonesty correctly, and whether the resulting findings and sanction could stand.

1. Appeal allowed. The Committee’s decision was quashed for serious procedural irregularity and error of law. The case was remitted, excluding the allegation of dishonesty.
2. The Committee had proceeded on an erroneous factual and legal basis. Delivery of a witness statement by a person acting as a courier did not establish representation, informed consent to non-attendance, or a voluntary waiver of the right to participate. The Committee had no proper basis for finding that the registrant had deliberately absented herself or would not attend if the hearing were adjourned.
3. The allegation of dishonesty was inadequately particularised. The charge should have identified the conduct alleged to be dishonest, the state of mind alleged when that conduct occurred, and the evidence relied upon to prove that state of mind. The Committee instead relied on alleged misrepresentations to agencies and hospitals and other matters which had not been charged.
4. The R v Ghosh direction, arising from [1982] 1 QB 1053 (CA), required a structured sequential approach: first identify whether the registrant acted as alleged; secondly decide whether that conduct was dishonest by ordinary standards; and thirdly decide whether she realised that it would be regarded as dishonest by those standards. The Committee failed to follow that sequence and did not properly address the defence that the registrant had misunderstood the scope of the instructions.
5. The legal assessor also failed to direct the Committee adequately on the defence, the evidence capable of supporting it, and how admitted wrongful conduct could nevertheless be honestly performed. In the circumstances, the Committee could not fairly determine the allegation in the registrant’s absence.
6. The findings of misconduct, impairment and sanction were largely dependent on the dishonesty finding. The court therefore expressed no view on their merits. The remaining allegations were remitted in light of the admissions and the judgment. The interim suspension was continued for six months or until redetermination, whichever was sooner, and the Council was ordered to pay the appeal costs.

• High Court (Administrative Court): appeal under article 38 of the Nursing and Midwifery Order 2001 allowed. The Conduct and Competence Committee’s decision dated 3 December 2010 was quashed. The remaining allegations were remitted, excluding dishonesty.