Asare-Konadu v Nursing and Midwifery Council

An appeal against a professional disciplinary sanction is by way of rehearing and is not confined to points of law. The court should nevertheless be slow to interfere with a regulatory panel’s assessment of the appropriate sanction, since the regulator is usually best placed to determine what is necessary and proportionate. Dishonest non-disclosure by a nurse is exceptionally serious because patients rely on nurses’ integrity. Public confidence will ordinarily require a severe sanction, potentially erasure. Each case remains fact-sensitive. Leniency may be justified where there is a full and frank admission, a persuasive explanation and material providing genuine assurance against future problems.

The appellant appealed under article 38 of the Nursing and Midwifery Order 2001 against a Nursing and Midwifery Council panel’s decision to strike him off the register. He had admitted failing to disclose other employment and working while on special leave. The panel also found proved allegations of aggressive conduct and further dishonest non-disclosure, and found impairment by reason of misconduct and dishonesty.

The findings were not challenged. The central issue was whether striking off was excessive, disproportionate or otherwise wrong.

1. The appeal was by way of rehearing and was not confined to points of law. Applying the approach in Fouche v Nursing and Midwifery Council [2011] EWHC 113 (Admin), the court should nevertheless be slow to interfere with a professional regulatory panel’s decision on sanction because the regulator is generally best placed to assess the necessary and proportionate response.
2. Dishonest non-disclosure by a nurse is exceptionally serious. Nurses have day-to-day contact with vulnerable patients, who rely on their integrity across a wide range of concerns. The public-interest balance will ordinarily favour maintaining confidence in the profession through a severe sanction. The observations in Nicholas-Pillai v General Medical Council [2009] EWHC 1048 (Admin), including that erasure may properly follow even a one-off instance of dishonesty, applied equally to nurses.
3. The panel had conducted careful fact-finding and had considered and discounted the alternative sanctions. This was prolonged dishonesty, accompanied by aggressive behaviour in the presence of a patient, limited insight and no persuasive explanation or material assuring the court of future compliance. The absence of previous misconduct and the severity of striking off did not make the sanction disproportionate.
4. The appellant was not penalised merely for disputing allegations. The panel and the court were entitled to consider the insight into his character revealed by his evidence. The appeal was dismissed.
5. The respondent was awarded £4,000 costs, payable within 56 days. The Council indicated that it would consider payment by instalments.

The judgment does not state the earlier panel’s case citation. The appeal was brought to the Administrative Court under article 38 of the Nursing and Midwifery Order 2001 against the sanction imposed by the Nursing and Midwifery Council panel.