Fuyane v Nursing and Midwifery Council

An appellate court reviewing a professional disciplinary penalty must give substantial weight to the specialist panel’s assessment and the public interest in maintaining confidence in the profession. Personal mitigation will often yield to that public interest. Proven or admitted dishonesty will frequently justify removal from a professional register, particularly where substantial sums are involved. However, striking off is not inevitable. In an exceptional case, the court may substitute a lesser penalty where the circumstances, genuine remorse, previous character, personal difficulties, loss of another career and the potential loss of valuable professional training cumulatively show that removal is disproportionate.

This was a statutory appeal against the decision of the Nursing and Midwifery Council’s Conduct and Competence Committee on 31 May 2012. The committee had ordered that the appellant be struck off the Register after she admitted two dishonesty offences relating to obtaining a nursing qualification and associated funding by fraudulent means.

The Crown Court had imposed a short suspended sentence and community work, having taken account of substantial personal mitigation. The appeal to the Administrative Court was confined to penalty. The central issue was whether the professional disciplinary penalty was excessive in the appellant’s unusual personal circumstances.

1. Appeal allowed. The striking-off order was set aside and replaced with an order suspending the appellant’s registration for one year from 31 May 2012, expiring on 31 May 2013.
2. An appeal against a penalty imposed by a professional body is subject to severe constraints. A strong case is required before the court interferes with a panel’s decision, since a panel including a member of the appellant’s profession is generally best placed to assess the standards required to protect the profession. The appellate court must also give significant weight to the public interest in maintaining confidence in professional integrity.
3. Personal circumstances commonly yield to that public interest. Proven or admitted dishonesty will frequently, and perhaps almost always, lead to removal from a professional register, especially where the sums involved are substantial. The court must therefore approach the penalty appeal with a colder forensic assessment than would be appropriate in an ordinary criminal sentencing appeal.
4. Those principles did not make striking off inevitable. The court treated the case as exceptional because the offences were committed while the appellant was in the difficult position of being an unsuccessful asylum seeker unable to work; she had immediately admitted the wrongdoing, apologised and shown genuine remorse; her academic, personal and professional references demonstrated otherwise impeccable character; the conduct had already destroyed her career as a lawyer; and, if she obtained leave to remain, striking off would deprive the community of her nursing training and experience.
5. Viewed cumulatively, those factors meant that the offences, although grave, did not justify removal from the Register. A one-year suspension was the appropriate penalty.

• Nursing and Midwifery Council Conduct and Competence Committee: on 31 May 2012, ordered that the appellant be struck off the Register following her admissions to two dishonesty charges.
• High Court (Administrative Court): allowed the statutory appeal on penalty and substituted a one-year suspension of registration.