Kibe, R (on the application of) v Nursing and Midwifery Council

In a statutory appeal from a professional disciplinary decision, an appellate court should respect the specialist tribunal’s primary findings of fact, credibility assessments and evaluative judgments unless legal error or an unsustainable conclusion is shown. Dishonesty may be established where a registrant deliberately conceals material employment history and appreciates that the concealment is dishonest by ordinary standards. Later disclosure, or the possibility that concealment might eventually be discovered, does not necessarily negate dishonesty at the earlier stage. Dishonesty outside direct clinical treatment may nevertheless impair fitness to practise where it reveals an attitudinal failure, lack of integrity or a risk that patient-safety concerns will be concealed. A striking-off sanction may be justified where lesser sanctions cannot address those risks.

The claimant, a registered nurse, appealed against findings by the Nursing and Midwifery Council that she had dishonestly omitted a previous substantive nursing post from a job application, had later failed to disclose that post during an employment investigation, and had denied having undergone preceptorship. The Council found misconduct, current impairment of fitness to practise and imposed a striking-off order.

The appeal challenged the factual findings, the dishonesty conclusions, the finding of impairment and the proportionality of the sanction. The central issues were whether the Council’s conclusions were open to it on the evidence and whether the findings justified striking off.

1. Appeal dismissed. The Council’s findings on the charges, impairment and sanction were upheld. The claimant’s later assertion that she had shown occupational-health certificates at interview did not make it impossible for the panel to find that she had dishonestly omitted the employment from the earlier application documents. The panel was entitled to assess her evidence overall and to conclude that the omissions were deliberate concealment.
2. The panel was also entitled to find that the claimant had undergone a period of preceptorship, although it had not been successful, and that her answer during the investigation meeting conveyed that she had not undergone any preceptorship. The distinction between whether preceptorship had been completed and whether it had been undertaken did not make the panel’s conclusion unsustainable.
3. The legal assessor had given the correct two-stage direction on dishonesty: whether the conduct was dishonest by the standards of ordinary honest people and, if so, whether the claimant knew that it was dishonest by those standards. The panel’s conclusions were based on its assessment of the evidence and were not open to appellate interference.
4. Following Watson v The General Medical Council [2006] EWHC 18 (Admin), disciplinary reasons need not address every piece of evidence or argument. Succinct reasons are sufficient where the decision and its evidential basis are apparent.
5. The finding of current impairment was justified. Repeated dishonesty, limited insight and lack of remorse supported the panel’s assessment that the claimant might conceal future clinical difficulties, thereby creating a potential risk to patients and damaging public confidence in the profession.
6. The panel had approached sanction in the required ascending order. Given the attitudinal nature of the misconduct, the absence of meaningful insight or remediation, the risk of repetition and the inability of conditions or suspension adequately to protect the public, striking off was not excessive. The claimant was ordered to pay the Council’s costs, summarily assessed at £3,897, not to be enforced without leave of the court.

• Nursing and Midwifery Council: Found the allegations proved, found the claimant’s fitness to practise impaired, and imposed a striking-off order.
• High Court (Administrative Court): Dismissed the statutory appeal and upheld the findings, impairment decision and sanction.