Moseka v Nursing and Midwifery Council

An appeal from a professional disciplinary decision is a rehearing governed by the applicable procedural rules, but the appellate court gives appropriate weight to a specialist tribunal’s assessment of witnesses and evidence. An amendment to charges is permissible where the tribunal has power to amend and the amendment causes no injustice. In regulatory proceedings, dishonesty is assessed on the civil standard of proof, with particular care where the consequences may include striking off. Fitness to practise impairment may be assessed by considering risk of harm, disrepute, breach of fundamental professional standards and dishonesty, including prospective risk. A striking-off order is proportionate where serious misconduct, dishonesty, clinical failures, lack of insight and risk of repetition make continued registration incompatible with public protection and confidence.

The appellant, a nurse, appealed against the Nursing and Midwifery Council’s decision to strike her from the register following findings of misconduct and current impairment of fitness to practise. Several charges concerned clinical failures, and one concerned failure to disclose an ongoing fitness to practise investigation on an employment application. The Conduct and Competence Committee amended two dates before making findings, and the appellant’s counsel did not oppose the amendments.

On appeal, the appellant challenged the findings of dishonesty and clinical misconduct, the amendments, the fairness of the proceedings, and the proportionality of striking off. The central issues were the proper scope of the appeal, the approach to dishonesty and impairment, and whether the Committee had erred in imposing the ultimate sanction.

1. Appeal dismissed. The appeal under article 38 of the Nursing and Midwifery Order 2001 was subject to the appeal framework in CPR 52 and Practice Direction 52D. The High Court had full jurisdiction, but should respect the specialist tribunal’s advantage in seeing and hearing witnesses. It should be particularly slow to interfere with credibility-based findings absent a proper error.
2. The amendments to charges 7 and 8 were within the Committee’s power under rule 28 of the Nursing and Midwifery (Fitness to Practise) Rules 2004. They did not alter the nature of the charges, the appellant was able to meet them, and no injustice or real prejudice was shown.
3. The Committee was entitled to find dishonesty. The relevant proceedings were regulatory, the standard of proof was the balance of probabilities, and the court agreed that the criminal two-stage Ghosh direction was not automatically required. However, particular care was required because a finding of dishonesty could lead to the severe sanction of striking off. The Committee was entitled to reject the appellant’s inconsistent explanations and infer deliberate concealment.
4. The four-part approach identified in the Shipman test and approved in CHRE v NMC and Grant was suitable for assessing impairment in professional regulatory cases. The relevant considerations included past or future risk of harm to patients, bringing the profession into disrepute, breach of fundamental professional tenets, and past or future dishonesty.
5. The Committee was entitled to conclude that the cumulative clinical failures and dishonesty amounted to serious misconduct, that fitness to practise remained impaired, and that the conduct was fundamentally incompatible with continued registration. Applying the precautionary public-protection objective in article 3(4) of the Nursing and Midwifery Order 2001, striking off was proportionate and no lesser sanction was sufficient.

• High Court (Administrative Court): appeal against the Nursing and Midwifery Council decision dated 30 May 2013 dismissed. The striking-off order remained in force.