Njie v Nursing and Midwifery Council

An appellate court hearing a professional disciplinary appeal by rehearing may exercise its own judgment on whether the evidence supports findings of fact, but it must not interfere unless the disciplinary decision was wrong. On professional standards and conduct, the court gives special weight to the specialist tribunal’s judgment. Hearsay evidence may be admitted where the governing rules require relevance and fairness, and its use is fair when assessed in the context of the totality of the evidence and appropriate safeguards. A striking-off sanction should be upheld unless it falls outside the range of reasonable responses. Repeated and significant dishonesty may leave a professional tribunal with little practical choice but to impose striking off.

The appellant, a nurse, appealed under article 29(9) of the Nursing and Midwifery Order 2001 against findings by the Nursing and Midwifery Council’s Conduct and Competence Committee. The Committee found 16 of 21 factual allegations proved, concluded that his fitness to practise was impaired by dishonesty, struck him off the register and imposed an immediate interim suspension pending appeal.

The appeal challenged the admission and use of hearsay evidence, the factual findings, alleged procedural unfairness, delay, the finding of dishonesty and the proportionality of the sanction. The central issues were whether the Committee had acted fairly and whether its findings and sanction were wrong.

1. Appeal dismissed. The Committee’s findings of fact and sanction stood. The appellant was ordered to pay the respondent’s costs, subject to assessment if not agreed.
2. Under rule 31 of the Nursing and Midwifery Council Rules 2004, the Committee could admit evidence subject to relevance and fairness, even if it would not be admissible in civil proceedings. The absence of cross-examination was an important consideration, but did not make hearsay inadmissible automatically. The hearsay evidence concerning Dr Szoke was fairly admitted and could be considered as part of the totality of the evidence. The court would have found the relevant allegation proved even without that hearsay.
3. The appeal was a rehearing with transcripts, rather than a de novo hearing. The court could exercise its own primary judgment on whether the evidence supported factual findings, but would not interfere unless the Committee was wrong. On professional standards and conduct, the court exercised distinctly secondary judgment and gave special weight to the specialist tribunal.
4. The Committee had not shifted the burden of proof and had acted fairly. Its careful treatment of the allegations, including finding five allegations not proved, supported the conclusion that its fact-finding process was principled and reliable.
5. The delay was excessive, but the appellant identified no specific culpable delay by the Council sufficient to affect the outcome. The striking-off order was not disproportionate and was within the range of reasonable responses. In light of repeated dishonesty and continuing lack of frankness, the Committee was entitled to treat a positive employment reference as of minimal significance and proceed without the employer’s attendance.

The judgment describes an appeal from the Nursing and Midwifery Council Conduct and Competence Committee’s decision dated 19 April 2013. The Administrative Court dismissed the appeal and allowed the Committee’s findings and sanction to stand.