Moyo v Nursing and Midwifery Council

An appeal from a professional regulatory sanction is a rehearing on whether the decision was wrong or unjust because of serious procedural irregularity. The appellate court must exercise its own judgment, while according appropriate respect to the specialist panel’s professional assessment, particularly on sanction and professional standards.

At the sanction stage there is no formal burden or standard of proof. The panel must assess the evidence and submissions and determine a proportionate sanction by reference to the public interest, including patient protection, public confidence and proper professional standards. Repeated dishonesty, abuse of trust and continuing risk may justify suspension even where there has been no actual patient harm.

The appellant, a registered nurse, appealed under article 38 of the Nursing and Midwifery Order 2001 against a 12-month suspension imposed by an NMC Conduct and Competence Committee panel.

She had admitted dishonestly working agency shifts while on emergency, compassionate or sick leave from her principal NHS employer. She contended that the sanction was excessive and disproportionate, and that the panel’s decision was wrong and procedurally unfair. The central issues were the proper appellate approach, the adequacy of the panel’s reasons, the treatment of mitigation and health evidence, and the proportionality of the sanction.

1. Appeal dismissed. The 12-month suspension order was reasonable and proportionate.
2. The appeal was by way of rehearing under CPR Part 52 and CPR rule 52.11(3). The High Court had to decide whether the panel’s decision was wrong or unjust because of serious procedural or other irregularity. It was not confined to the narrower grounds of public law review.
3. Nevertheless, the appellate court had to give appropriate weight to the specialist panel’s expertise, particularly in assessing the seriousness of professional misconduct and the sanction required to maintain professional standards and public confidence. The court retained responsibility for correcting material errors of fact or law and for exercising a secondary judgment on the application of the relevant principles.
4. At the sanction stage there was no formal burden or standard of proof. The panel was required to exercise professional judgment as to the proportionate protection of the public interest, comprising patient protection, maintenance of public confidence in the profession and regulatory body, and the declaration and upholding of proper standards.
5. The panel was entitled to assess the appellant’s evidence and mitigation and to reject it where appropriate. Her health, medication, financial anxieties and understanding of secondary-employment obligations were relevant to mitigation and the risk of repetition. She had had a fair opportunity to address those matters.
6. The panel properly considered sanctions in ascending order. Repeated, premeditated dishonesty by a senior nurse, involving abuse of trust and potential patient risk, justified temporary removal from the register. The absence of actual patient harm and the absence of repetition did not make suspension disproportionate. A caution would not protect the public or mark the seriousness of the misconduct, and workable conditions of practice could not be formulated.
7. The panel’s reasons were careful, detailed and clear, and met the standard required of a lay professional tribunal sitting with a legal assessor.

• NMC Conduct and Competence Committee: imposed a 12-month suspension order on 8 January 2015 after finding misconduct and impairment.
• High Court (Administrative Court): dismissed the appeal and upheld the suspension order: [2015] EWHC 3547 (Admin).