Chuah v Nursing and Midwifery Council

A statutory appeal against a professional disciplinary decision is technically a rehearing, but ordinarily operates as a review of the material before the disciplinary panel. The appellant must establish an error of law, fact or judgment. Appropriate respect must be given to the panel’s specialist expertise, while the court must still decide whether the decision and sanction were appropriate and proportionate.

Current impairment is a predictive, forward-looking assessment. Past misconduct may nevertheless demonstrate present impairment, particularly where public confidence and professional standards require a finding despite remediation. A sanction will be upheld unless it is wrong in principle, clearly inappropriate, manifestly excessive or disproportionate.

The appellant, a registered nurse, brought a statutory appeal against the decision of the Nursing and Midwifery Council’s Conduct and Competence Committee to remove his name from the register. The decision followed convictions for driving with excess alcohol and assault by beating. The Committee found that his fitness to practise was currently impaired and that striking off was the only appropriate sanction.

The appellant challenged procedural matters, the refusal of an adjournment to obtain psychiatric evidence, the finding of current impairment and the proportionality of the sanction. The central issues were the High Court’s approach to an appeal under Articles 29 and 38 of the Nursing and Midwifery Order 2001, the significance of subsequent rehabilitation, and the proper degree of deference to the specialist tribunal.

1. Appeal jurisdiction. The appeal was governed by Part 52 of the CPR and the applicable Practice Direction. Although technically by way of rehearing, it involved review of the evidence and material before the Committee. The appellant had to establish an error of law, fact or judgment. The court was required to give appropriate respect to the Committee’s professional expertise and its assessment of live evidence, but no more than was warranted.
2. Procedure. The Committee acted properly in relation to the legal assessor and was entitled to refuse an adjournment under Rule 32(4) of the 2004 Rules. The convictions were admitted, so the NMC’s burden of proving the factual allegations was discharged. The impairment issue was a matter of judgment rather than a disputed question of fact.
3. Current impairment. The assessment was forward-looking and predictive, but past conduct was relevant to whether fitness to practise was impaired at the date of decision. Remediation and abstinence did not necessarily remove impairment. The Committee was entitled to consider the seriousness of the drunken assault in hospital, the absence of meaningful insight, the potential harm to the public, and the need to maintain confidence in the nursing profession. It was therefore entitled to find current impairment.
4. Sanction. The court should respect, but not uncritically defer to, the Committee’s specialist judgment. It had to decide whether the sanction was appropriate and necessary in the public interest, or excessive or disproportionate. Intervention was justified if the sanction was wrong in principle or clearly inappropriate. The Committee had considered the available sanctions, the Indicative Sanctions Guidance, the appellant’s history, rehabilitation and the practicability of conditions. It gave sufficient reasons for rejecting conditions and suspension. Striking off was severe but was not clearly inappropriate, plainly disproportionate or wrong in principle.
5. The appeal was dismissed.

• Nursing and Midwifery Council Conduct and Competence Committee: found the convictions proved, determined that the appellant’s fitness to practise was impaired, and imposed a striking-off order.
• High Court (Administrative Court): dismissed the statutory appeal.