Suddock v The Nursing and Midwifery Council

A statutory appeal from a professional disciplinary decision is a rehearing, but not a complete reconsideration of the merits. The appellate court may intervene where the decision was wrong or unjust because of a serious procedural or other irregularity.

Deference is appropriate on professional standards, case management and credibility findings. It is not required where the tribunal failed to test evidence against contemporaneous documents, agreed facts, inherent probabilities and inconsistencies, or relied excessively on demeanour. Where the evidence cannot safely support a finding, the appellate court may substitute its own decision. Where material flaws undermine related findings, those findings may require quashing and remission to a differently constituted tribunal.

The appellant, a former nursing-home manager, appealed under Articles 29(9) and 38 of the Nursing and Midwifery Order 2001 against findings by an NMC Conduct and Competence Committee panel. The panel had found several allegations of professional misconduct proved, determined that her fitness to practise was impaired, and imposed a striking-off order.

She challenged the fairness of the disciplinary process and the evidential basis for the findings. The appeal concerned the proper scope of the statutory rehearing, the evaluation of credibility and documentary evidence, several specific charges, and the appropriate remedy where some findings were unsafe.

1. Nature of the appeal. The appeal was by way of rehearing, but the Court would not revisit every aspect of the merits. Under the approach in Raschid and Fatnani v GMC [2007] EWCA Civ 46, as reconciled with Meadow v GMC [2006] EWCA Civ 1390 in Cheatle v GMC [2009] EWHC 645 (Admin), the intensity of review depended on the issue. The Court respected professional expertise and tribunal discretion, but could examine whether the evidence supported the findings and whether relevant matters had been considered.
2. Evidence and credibility. Findings based on demeanour deserved caution. The tribunal should first test evidence against contemporaneous documents, agreed or non-contentious facts, inherent probabilities, and internal and external consistency. The guidance in Southall v General Medical Council [2010] EWCA Civ 407 was applied. The panel had placed excessive reliance on demeanour and had failed adequately to address serious inconsistencies, unreliable hearsay, documentary evidence and the possibility that evidence had been fabricated or planted.
3. Specific charges. Charges 3, 7.1 and 10, and charges 2.1.2, 2.2.1, 2.2.2 and 2.2.3, were quashed and findings substituted that they were not proved. The same applied to charges 1.1–1.3, 1.5, 1.10, 2.1.1 and 2.1.4, although those matters were remitted because the Court could not safely substitute its own findings.
4. The findings on charges 4, 13, 14 and 15 were preserved. Charges 13–15 concerned deficiencies identified in 2007 and did not themselves justify the striking-off sanction. The striking-off order could not stand.
5. The remitted charges were to be reconsidered by a fresh panel, alongside sanction on the preserved charges, subject to a directions hearing within one month and a rehearing within five months. Failure to comply would result in the charges being struck out.

• Conduct and Competence Committee of the NMC: Found some allegations proved, determined that the appellant’s fitness to practise was impaired, and imposed a striking-off order.
• High Court (Administrative Court): Allowed the appeal in part. Several findings were quashed and replaced with findings that the charges were not proved. Other charges were remitted to a fresh panel for reconsideration.