Johnson & Anor v Nursing and Midwifery Council

Judicial review of a professional disciplinary finding is concerned with lawfulness, not whether the tribunal reached the preferable conclusion. The court may intervene where findings lack a reasonable evidential basis, reasons do not rationally support them, material facts were mistaken, or procedural unfairness occurred.

Professional misconduct requires more than ordinary negligence. The conduct must involve gross professional negligence, a serious departure from acceptable standards, or conduct that fellow practitioners would regard as deplorable. A failure to comply with a safe system does not itself establish that the system was unsafe. Managerial responsibility also requires proof of personal culpability.

Sarah Johnson and Lynette Maggs, respectively the manager and deputy manager or matron of a nursing home, challenged findings of misconduct made by the Nursing and Midwifery Council’s Professional Conduct Committee. The findings concerned allegedly inadequate records relating to residents’ falls and, in Ms Johnson’s case, failures concerning the administration of medication.

The disciplinary proceedings lasted more than eight years. The Committee imposed no sanction, but the findings had continuing professional consequences. The claimants therefore sought judicial review because the statutory right of appeal under section 12 of the Nurses, Midwives and Health Visitors Act 1997 did not apply to decisions which neither removed nor suspended registration. The central issues were whether the Committee had acted irrationally or unfairly, given adequate reasons, and applied the correct legal test for misconduct.

1. Outcome. The findings of misconduct against both claimants were unlawful and were quashed.
2. The court would not interfere merely because a disciplinary tribunal may have reached a wrong conclusion. Judicial review was available where the tribunal’s factual findings had no reasonable evidential basis, where its reasons did not rationally support the findings, or where a material mistake of established fact caused unfairness. The standard of review on factual and evaluative matters was reasonableness.
3. The Committee had not shown that separate falls risk assessments or care plans were required by the standards of an ordinarily competent nurse or matron at the relevant time. Expert evidence that such documents would have been clinically desirable did not establish negligence judged by contemporary professional standards. The evidence therefore could not rationally support the findings concerning Residents J, K, D and A.
4. Even if failures in record keeping had been established, ordinary negligence would not amount to misconduct. The required conduct was gross professional negligence, a serious departure from acceptable standards, or conduct regarded as deplorable by fellow practitioners. The evidence did not meet that threshold.
5. The findings against Ms Johnson also involved unjustified inferences that she had failed to pass information to the matron, and allegations were effectively proved before they were put to her in evidence. That was procedurally unfair. In relation to medication, occasional failures to pass on information did not establish that the underlying system was unsafe. A breach of a safe system is not itself proof that the system was defective, and the Committee had identified no defect or necessary improvement.
6. The prolonged proceedings violated the claimants’ right under Article 6 of the Convention to a hearing within a reasonable time, although the decision was quashed principally because the misconduct findings were unreasonable and unfair.

The judgment was a first-instance judicial review decision. It records that an earlier judicial review challenge to an interlocutory disciplinary decision was refused by Beatson J in 2008, but the present claims were determined afresh by the Administrative Court.