Mafico, R (on the application of) v Nursing and Midwifery Council

On a statutory appeal from a professional disciplinary decision, the appellate court must correct errors of fact, law or approach, while giving appropriate weight to the specialist tribunal’s expertise and its assessment of live evidence. Primary factual findings founded on credibility are difficult to displace unless shown with reasonable certainty to be wrong.

A complaint of legal misdirection requires two separate inquiries: whether there was a material misdirection, and whether it was sufficiently significant to invalidate the decision. Detailed reasons and the tribunal’s independent exercise of professional judgment may show that an assumed misdirection had no such effect.

The claimant, a nurse, appealed under article 38 of the Nursing and Midwifery Order 2001 against a Conduct and Competence Committee’s finding that her fitness to practise was impaired and its decision to strike her from the register.

The Committee found that she had stolen medication, had been dishonest about the extent of her tramadol use, and remained at risk of repetition. The appeal alleged inadequate reasoning concerning the factual findings and a legal misdirection at sanction stage arising from reliance on Solicitors Regulatory Authority v Sharma.

1. Appeal dismissed. The court’s jurisdiction under article 38 of the Nursing and Midwifery Order 2001 and CPR rule 52.11 was engaged on the basis that the Committee’s decision was allegedly wrong, rather than unjust because of a serious procedural irregularity.
2. The approach in Bhatt v General Medical Council was adopted. The appellate court must correct material errors of fact or law, but should respect the specialist tribunal’s professional expertise and its advantage in hearing live witnesses. Credibility-based primary findings are close to unassailable and should be displaced only where shown with reasonable certainty to be wrong. The degree of deference may be moderated where the issue concerns judgment outside the tribunal’s professional experience.
3. The Committee’s conclusion that the claimant had used tramadol on multiple occasions was adequately reasoned. The expert toxicology evidence was unchallenged and supported that conclusion. The Committee was entitled to prefer it over the claimant’s evidence, and further elaboration would have added no substance. Substituting a lay assessment for the unchallenged expert opinion would have been wrong.
4. The duty to give reasons requires reasons sufficient to make clear why the losing party lost. A straightforward factual case will ordinarily require less detailed reasoning than an exceptional or complex case. This was straightforward because the expert evidence was unchallenged and the Committee stated why it preferred that evidence.
5. A challenge based on legal advice to a disciplinary committee requires two distinct questions: whether there was a material misdirection and, if so, whether it was sufficiently significant to the result to invalidate the decision. The court was bound by Libman v General Medical Council on that approach.
6. Even assuming that reference to Solicitors Regulatory Authority v Sharma could have amounted to a misdirection without express reference to Parkinson v Nursing and Midwifery Council, it was not shown to have materially affected the outcome. The Committee considered sanctions in ascending order, referred to the Indicative Sanctions Guidance and relevant mitigating and aggravating factors, and exercised its own professional judgment.
7. The Committee’s decision to impose a striking-off order therefore stood. The respondent was awarded costs summarily assessed at £3,826.

The judgment describes a statutory appeal to the Administrative Court under article 38 of the Nursing and Midwifery Order 2001 from the decision of the Nursing and Midwifery Council’s Conduct and Competence Committee. The appeal was dismissed.