Shackleford v Nursing and Midwifery Council

An appeal from a professional disciplinary decision is a rehearing which is, in substance, a review of the material before the panel. The court respects the panel’s professional expertise but must intervene if its decision is wrong or unjust because of serious procedural or other irregularity.

In fitness-to-practise proceedings arising from a criminal conviction, serious violent conduct may bring the profession into disrepute even when unrelated to professional practice. Where the underlying cause remains unremedied and there is a real risk of repetition, impairment may be established. Striking off may be proportionate where the conviction and its circumstances are fundamentally incompatible with continued registration, particularly without powerful evidence of remorse, insight and remediation.

The claimant, a registered nurse, appealed against a decision of the Nursing and Midwifery Council Conduct and Competence Committee. The Committee found that his fitness to practise was impaired by reason of a conviction for assaulting his pregnant partner in the presence of his child and imposed a striking-off order.

The appeal challenged the findings on impairment, alleged procedural unfairness and the proportionality of the sanction. The central issues were whether the Committee had misunderstood the relevance of the claimant’s mental health, whether it had been entitled to find no remediation, and whether striking off was justified.

1. Appeal dismissed. The appeal was by way of rehearing, but in reality involved a review of the evidence and other material before the Committee. The court was required to respect the specialist tribunal’s professional expertise while remaining willing to intervene where its decision was wrong or unjust because of serious procedural or other irregularity. The Committee was required to give legally adequate reasons.
2. The Committee had been entitled to find that the claimant’s conviction involved a breach of the standards expected of a nurse and of the fundamental tenets of nursing. The assault was serious, occurred in the presence of a child and brought the nursing profession into disrepute. The court criticised the observation that patients had previously been exposed to unwarranted risk, since that assertion was unsupported by the evidence. That error did not undermine the impairment decision.
3. The claimant’s underlying depressive illness had not been effectively remedied, or shown to be the subject of an effective remedial endeavour. In those circumstances there was a real risk that serious violent behaviour might be repeated. Coupled with the conviction and its circumstances, that justified a finding of impairment by reason of the conviction.
4. The purpose of sanction was protection of the public and maintenance of public confidence, rather than punishment. Suspension might be appropriate where an individual provided powerful mitigation, showed insight and remorse, and clearly demonstrated efforts to remedy the underlying problem and repair the damage caused. Those matters were not evidenced here.
5. The Committee had considered sanctions in the proper sequence and was entitled to conclude that caution and conditions of practice were inadequate. The absence of a reflective statement, up-to-date medical evidence, evidence of treatment, probation evidence, relevant testimonials and evidence from the claimant’s wife materially weakened the mitigation. Even assuming that such material could have been produced, the court considered that the result would have been the same. The striking-off order was neither excessive nor disproportionate.

There was an order for the defendant’s costs in the sum claimed.

The claimant appealed to the Administrative Court against the Conduct and Competence Committee’s finding of impairment and striking-off order. The appeal was dismissed.