Harford v The Nursing and Midwifery Council

In an appeal from a professional disciplinary decision, the court must respect the specialist tribunal’s assessment of evidence and professional standards, while correcting legal error or a decision outside the reasonable range.

A failure to comply with a professional code does not automatically establish misconduct. The tribunal must determine whether the conduct, viewed in its circumstances, was a serious departure from the standards properly expected of the registrant. A duty to cooperate with investigations may extend to investigations concerning another practitioner where the circumstances require it.

Current impairment requires consideration of both future risk and the wider public interest in maintaining professional standards and public confidence. Remediation, insight and the risk of repetition are relevant, but a finding may be justified where public confidence would otherwise be undermined.

The appellant, a registered nurse, appealed under article 38 of the Nursing and Midwifery Order 2001 against findings by a Conduct and Competence Committee of the Nursing and Midwifery Council. The Committee found that she had committed serious misconduct by failing to provide her employer with information concerning patients who had allegedly complained about a colleague’s phlebotomy practice.

The Committee also found that her fitness to practise was impaired and imposed a six-month conditions of practice order. The appellant accepted that she had not supplied the requested list, but argued that her conduct did not amount to misconduct, that her fitness to practise was not impaired, and that the sanction was disproportionate.

The central issues were whether the Committee applied the correct approach, whether its conclusions were open to it on the evidence, and whether the appeal court should interfere.

1. Appeal dismissed. The conditions of practice order was not challenged as disproportionate independently of the findings on misconduct and impairment. The respondent was entitled to its costs.

2. Under article 38 of the Nursing and Midwifery Order 2001 and CPR 52.11, the appeal was by way of review. The court had to respect the specialist Committee’s expertise, its assessment of witnesses, and its evaluative judgment, while allowing an appeal if the decision was wrong or unjust because of serious procedural irregularity. The approach in Meadow v General Medical Council [2007] QB 462 was applicable.

3. The Committee had not misdirected itself on misconduct. Roylance v General Medical Council (No 2) [2001] 1 AC 311 established that misconduct involved an act or omission falling short of what was proper in the circumstances and, in the professional context, had to be serious. The Committee’s finding that the appellant’s conduct was a significant departure from the standards expected of a registered nurse and amounted to serious misconduct showed that it had applied the correct test.

4. The duty in paragraph 56 of the professional Code to cooperate with internal and external investigations was not confined to investigations concerning the registrant. The appellant’s refusal to provide the requested information made it materially harder for the employer to investigate possible risks to patients. Although breach of the Code did not of itself establish misconduct, the Committee was entitled to find that the breach was serious misconduct in the circumstances.

5. Fitness to practise had to be assessed as at the hearing, looking forward while considering past misconduct, remediation, insight and the likelihood of repetition. The tribunal should also consider whether failure to find impairment would undermine proper professional standards or public confidence. The framework adopted from Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Grant [2011] EWHC 927 (Admin) was appropriate.

6. The Committee had seen and heard the appellant and gave cogent reasons for finding limited insight into confidentiality, patient safety and the effect of her conduct on public confidence. A differently constituted Committee might have assessed the evidence more favourably, but the decision was within the reasonable range open to it. The finding of impairment therefore stood.

• High Court (Administrative Court): the appeal from the Conduct and Competence Committee’s decision was dismissed. The Committee’s finding of serious misconduct, finding of impaired fitness to practise and six-month conditions of practice order remained in force.