Amao v Nursing and Midwifery Council

On an appeal from a professional disciplinary panel, the court may correct material errors of fact or law and intervene where procedural mishaps cause injustice. A registrant’s fitness to practise requires separate consideration of insight into past misconduct and insight into steps needed to prevent recurrence. A panel must give an unrepresented registrant a fair opportunity to address the future risk of repetition before relying on lack of insight to impose the ultimate sanction. Serious misconduct may justify suspension, but striking off requires a fair and properly informed assessment that continued registration is fundamentally incompatible with public protection and professional standards.

The claimant, a registered nurse, appealed under article 29(9) of the Nursing and Midwifery Order 2001 against a Conduct and Competence Committee panel’s findings that six allegations concerning threats and abusive conduct were proved, that her fitness to practise was impaired, and that she should be struck off the register.

She challenged the factual findings, the fairness of the proceedings, and the proportionality of the sanction. The appeal raised issues concerning procedural mishaps involving witness evidence, the scope of the impairment inquiry, the effect of provocation, the application of professional standards to conduct towards a non-clinical employee, and whether the matter should be remitted.

1. Appeal and court’s role. The appeal was dismissed so far as it challenged the factual findings, but allowed as to sanction. The court’s role under article 29(9) included correcting material errors of fact or law and exercising a distinct secondary judgment on the application of relevant principles. It should intervene where a procedural mishap caused injustice.
2. Factual findings. The inaccurate evidence given by Ms Booth and Ms Gonsai about earlier concerns amounted to procedural mishaps, as did the failure to recall Ms Gonsai for further cross-examination. Nevertheless, the panel had carefully investigated the problem, the claimant could have cross-examined the witnesses on the inconsistency, and the evidence supporting each factual allegation was independently overwhelming. No injustice affecting the factual findings was shown.
3. Misconduct and professional standards. Provocation did not justify the claimant’s threats and abusive conduct. The Code of Conduct applied to conduct towards a fellow employee, whether or not that employee was a clinician. The panel was entitled to find misconduct and impairment on the basis of the serious threats, their impact on colleagues and members of the public, the risk to patients, and the need to uphold professional standards and public confidence.
4. Impairment and fairness. The critical procedural unfairness concerned the assessment of insight. The claimant was not given a fair opportunity to address not only whether she accepted the historical findings, but also whether she understood the need to take steps to prevent similar conduct in future. The questioning wrongly focused on requiring her to accept findings which she was entitled to appeal. The panel’s finding of a high risk of repetition, and its sanction decision insofar as based on that finding, were therefore vitiated.
5. Sanction and disposal. A one-year suspension was the minimum sanction that could properly reflect the seriousness of the threats, the alarm caused, and the damage to the profession’s standing. Striking off might have been justified if the claimant had fairly been shown to lack insight into preventing recurrence, but that conclusion could not fairly be drawn. In view of the nearly two-year interim suspension and the additional period already undergone, the court quashed the striking-off order, refused remission to a fresh panel, and refused to substitute any greater sanction.
6. The court did not determine whether a meeting between the panel chairman and witnesses created a perception of bias, because the sanction decision was quashed on other grounds.

The appeal was brought from decisions of a Nursing and Midwifery Council Conduct and Competence Committee panel. The court dismissed the challenge to the factual findings, but allowed the appeal as to sanction, quashed the striking-off order, refused remission, and refused to substitute an alternative sanction.