O v Nursing and Midwifery Council

In professional disciplinary proceedings, a sanctioning panel must evaluate all material mitigation before deciding whether suspension is insufficient. Where suspension and striking-off are the only realistic options, mitigation must be considered at the suspension stage. The question whether suspension would be too lenient is the conclusion flowing from that assessment, not an independent factor to be addressed first. A panel that rules out suspension without evaluating the mitigation adopts a legally defective process. The usual remedy is remission to the disciplinary body.

Mrs O, a nurse, appealed against a Conduct and Competence Committee decision striking her off the nursing register after her conviction for assaulting and ill-treating her children contrary to section 1(1) of the Children and Young Persons Act 1933. She argued that the committee had placed undue weight on the conduct of her criminal defence, failed to evaluate her mitigation, and imposed a disproportionate sanction.

The committee had considered suspension and striking-off in ascending order of gravity. It treated paragraph 71.2 of the NMC’s Indicative Sanctions Guidance as a particular consideration and rejected suspension before properly evaluating the matters relied on in mitigation. The central issue was whether the committee’s reasoning was legally adequate and, if not, what remedy should follow.

1. Appeal allowed in part. The committee’s decision was wrong because its reasoning on sanction was defective. The court did not decide that striking-off was necessarily disproportionate.
2. The court should usually show considerable respect to the professional judgment of a specialist disciplinary body. Under CPR 52.11(3), however, the appeal must be allowed where the decision is wrong or unjust because of serious procedural or other irregularity.
3. The committee was entitled to treat the manner in which the criminal defence was conducted, including the fact that the children had been required to give evidence, as an aggravating feature. That was distinct from treating the not guilty pleas themselves as aggravating.
4. The NMC Guidance permitted sanctions to be considered in ascending order of gravity, but all material mitigation had to be evaluated when suspension was considered. Relevant matters included insight, remediation, absence of professional concerns, cultural background, lack of intent to harm and risk of repetition.
5. Paragraph 71.2 of the Guidance was not an independent consideration. It expressed the conclusion whether suspension was too lenient, which could properly be reached only after assessment of the other relevant factors. It should therefore be addressed at the end of the deliberations.
6. Because the committee rejected suspension before conducting that evaluation, its conclusion that striking-off was the only appropriate sanction could not stand. The matter was remitted to the committee, which could consider the most up-to-date evidence, including the later reunification of the family and continuing supervision.

• High Court (Administrative Court): The appeal from the NMC Conduct and Competence Committee was allowed to the extent that the sanction decision was quashed and remitted for reconsideration. The court left the appropriate sanction to the committee.