Odoi-Asare v Nursing & Midwifery Council

On an appeal from a professional disciplinary tribunal, the court must decide whether the tribunal was wrong or whether its decision was unjust because of a serious procedural or other irregularity. The tribunal’s assessment of professional standards and public confidence attracts particular respect, although the court forms its own secondary judgment.

In fitness-to-practise cases, the same impairment approach applies to clinical and non-clinical misconduct. The tribunal must consider both public protection and the wider need to uphold professional standards and public confidence. Remediation and current competence do not necessarily prevent impairment being found on public-interest grounds. Sanction must remain proportionate.

A registered nurse appealed under article 38 of the Nursing and Midwifery Order 2001 against a Conduct and Competence Committee decision finding her fitness to practise impaired by serious misconduct and imposing a 30-month caution order.

The misconduct concerned failures to safeguard a vulnerable child, notify colleagues of safeguarding concerns, maintain records and conduct required reviews. The Committee accepted that there were no current public-protection concerns but found impairment on public-interest grounds. The appeal challenged the impairment finding, the Committee’s reasons and factual conclusions, the refusal to admit fresh evidence, and the length of the caution order.

1. The appeal was dismissed. Under article 38 of the Nursing and Midwifery Order 2001 and CPR Part 52, the court could allow the appeal only if the Committee’s decision was wrong or unjust because of a serious procedural or other irregularity. The Committee was entitled to particular respect on professional standards and the public interest.

2. The Committee adopted the correct two-stage approach: first deciding whether the established facts amounted to misconduct, and then whether fitness to practise was currently impaired. The approach was the same for clinical and non-clinical misconduct.

3. Following Council for Healthcare Regulatory Excellence v Nursing & Midwifery Council and Grant, the Committee had to consider both current risk to patients and whether failing to find impairment would undermine professional standards or public confidence. Remediation and the absence of current public-protection concerns did not compel a finding of no impairment.

4. The Committee gave adequate reasons. It was entitled to conclude that the nurse’s failures placed a vulnerable child at risk and that public confidence would be seriously undermined by a finding of no impairment. The different descriptions of seriousness at the interim-order and impairment stages reflected different legal tests.

5. Fresh evidence was refused. The principles in Ladd v Marshall remained relevant, and matters capable of clarification at the original hearing did not satisfy those principles.

6. The 30-month caution order was not disproportionate. The Committee had considered the Indicative Sanctions Guidance, aggravating and mitigating factors, proportionality, insight and remorse.

• High Court (Administrative Court): appeal under article 38 of the Nursing and Midwifery Order 2001 dismissed; the Committee’s finding of impairment and 30-month caution order upheld.