Okafor v Nursing and Midwifery Council

An appeal from a professional disciplinary tribunal is by way of rehearing. The court asks whether the tribunal’s decision was wrong, while giving appropriate respect to specialist professional judgment and findings based on live evidence. The court should be slow to disturb primary factual findings and should interfere with sanction only in a very strong case.

In assessing dishonesty, any difference between the ordinary Ghosh formulation and a professional-standard formulation will not affect the result where the conduct is plainly dishonest on either approach. A striking-off order may be imposed for serious misconduct and dishonesty even where a separate lack-of-competence allegation could not independently justify striking-off under the Nursing and Midwifery Order 2001.

Susan Okafor appealed under article 38 of the Nursing and Midwifery Order 2001 against findings by the NMC Conduct and Competence Committee that her fitness to practise was impaired by misconduct and lack of competence. The Panel found serious failures in patient care, dishonest record-keeping, inadequate clinical performance, lack of insight and a significant risk of repetition. It ordered that she be struck off the register under article 29(5)(a).

The appeal challenged delay, the formulation of the charges, the Panel’s decision to proceed in her absence on the final day, dishonesty findings, evidential rulings, alleged disability discrimination, impairment, the qualifications of an academic mentor and the proportionality of striking-off.

1. Appeal dismissed. The Panel had given Miss Okafor a fair opportunity to present her case. The alleged delay caused no demonstrated prejudice and did not deprive her of a fair hearing under article 6 of the Convention.
2. The appeal was by way of rehearing, but the court’s task was to decide whether the Panel’s decision was wrong. Appropriate weight had to be given to the Panel’s specialist expertise and its opportunity to hear live evidence. Primary factual findings, particularly those based on credibility, should be disturbed only where shown with reasonable certainty to be wrong. The Panel’s findings were open to it on the evidence.
3. The charges had not been impermissibly changed. The allegations underlying Charge 2 had been disclosed in a witness statement, giving Miss Okafor ample notice of the case she had to meet.
4. The Panel was entitled to proceed with the announcement of sanction in Miss Okafor’s absence. She had waived attendance, and she had already made submissions on sanction.
5. The Panel’s dishonesty findings were sound. The focus was the false recording of a handover and the falsification of patient assessments, not whether entries had been made retrospectively. The result was the same whether the ordinary Ghosh test or the professional-standard formulation was used.
6. The Panel was entitled to find current impairment based on serious misconduct, dishonesty, lack of competence, lack of insight, absence of remediation and risk of repetition. It was also entitled to give limited weight to character evidence and to reject the alleged disability discrimination.
7. The sanction was proportionate. Public protection, professional standards and public confidence were central. Lack of insight and remorse were relevant. The high threshold for appellate interference with a disciplinary sanction was not met.
8. Okeke v Nursing and Midwifery Council [2013] EWHC 714 (Admin) was distinguishable. Article 29(6) restricted striking-off based on lack of competence, but the Panel’s order was based on misconduct and dishonesty, which were independently incompatible with continued registration.

The judgment describes an appeal under article 38 of the Nursing and Midwifery Order 2001 from the NMC Conduct and Competence Committee’s decision dated 18 July 2014. The Administrative Court dismissed the appeal.