Okunlola v Nursing And Midwifery Council

An appeal from a professional disciplinary decision is a rehearing, but the court will interfere only where persuaded that the tribunal’s decision was wrong. It gives particular respect to professional judgments made by the specialist regulator, especially on professional standards and sanction.

Fitness to practise proceedings are directed principally to present protection of the public, although past conduct remains relevant to assessing present fitness. Repeated, fundamental dishonesty involving abuse of professional position may justify a finding of current impairment even where clinical competence is not in issue. Where such dishonesty is fundamentally incompatible with remaining on the register, striking off may be proportionate despite remorse, remediation, an otherwise good career and the absence of identified patient harm.

The claimant, a registered mental health nurse, appealed against a striking-off order imposed by the Nursing and Midwifery Council’s Conduct and Competence Committee. He had admitted providing false employment references and arranging for junior nurses to provide references containing false representations.

The Committee found misconduct, current impairment of fitness to practise and fundamental incompatibility with continued registration. The claimant argued that his subsequent work without clinical complaint, admissions, remorse and remedial steps meant that he was no longer impaired and that striking off was disproportionate. He also alleged procedural irregularity. The central issues were whether the Committee had properly assessed current impairment and whether its sanction was proportionate.

1. Appeal dismissed. The Committee’s findings and striking-off order were upheld. The claimant was ordered to pay costs of £3,200, with 56 days for payment.
2. The court adopted the approach stated by Cranston J in Cheatle v GMC [2009] EWHC 645. The appeal was a rehearing, not merely a review on a point of law. The court could form its own view on whether the evidence supported factual findings, but would not interfere unless persuaded that the decision was wrong. Professional judgments concerning standards of conduct and practice, and the choice of sanction, attracted special respect.
3. The claimant’s reliance on the absence of complaints about his clinical practice did not address the allegation actually made. The impairment alleged arose from misconduct, namely dishonesty, rather than lack of competence.
4. The principle that fitness to practise proceedings look forward to present protection of the public, recognised in Meadow v GMC [2006] EWCA Civ 1390, did not require the Committee to disregard the seriousness of past conduct. Past conduct, the timing and quality of admissions, insight and remediation were relevant to present risk and public confidence. The Committee was entitled to regard the late admissions and attempts to shift responsibility as demonstrating limited insight.
5. The dishonesty was repeated, sustained, involved abuse of the claimant’s position as a senior nurse and had obvious potential to place patients at risk. It was properly characterised as fundamental dishonesty and could not be brushed aside merely because no particular patient harm had been identified.
6. The court rejected the submission that the case fell within the residual category identified in Parkinson v Nursing and Midwifery Council [2010] EWHC 1898 (Admin), where striking off for dishonesty might be disproportionate. The claimant’s limited knowledge of some individuals did not materially reduce the fundamental nature of the dishonesty. The Committee had considered mitigation and the available sanctions and was entitled to conclude that lesser sanctions would not protect the public or maintain confidence in the profession.
7. The general allegations of procedural irregularity and the public-interest submissions were without merit.

The claimant appealed to the Administrative Court against the Nursing and Midwifery Council Conduct and Competence Committee’s decision dated 11 September 2014, which imposed a striking-off order. The Administrative Court dismissed the appeal.