Okpara v Nursing and Midwifery Council

An appeal from a professional disciplinary decision is a rehearing by way of review. The court may reach its own view on the evidence, but should respect the specialist tribunal’s findings and professional judgment, particularly on standards of practice and sanction. A review panel may impose a more severe sanction than an earlier panel where material developments have occurred, including a failure to undertake remedial steps or fresh evidence of persistent lack of insight. A finding of dishonesty ordinarily places a nurse at serious risk of striking off. The public interest in maintaining confidence in the profession may outweigh the registrant’s personal and financial interests. Where the governing statutory provisions permit a striking-off order for dishonesty, such an order is not unlawful merely because the original panel imposed suspension.

The appellant, a registered nurse, appealed under the Nursing and Midwifery Order 2001 against a review decision of the Nursing and Midwifery Council’s Conduct and Competence Committee. An earlier panel had found incompetence in poly-pharmacy medication administration and dishonesty in a job application, but imposed a six-month suspension and identified steps relevant to review.

The review panel found that the appellant had provided inadequate evidence of remediation and had produced a reflection showing continuing lack of insight. It replaced the suspension with a striking-off order. The appeal raised issues concerning adjournment, statutory power, proportionality, relevant considerations, Convention rights and procedural fairness.

1. Appeal dismissed. The review panel’s striking-off order was upheld and was to take effect.
2. The appeal was a rehearing by way of review under Articles 29(9) and 38 of the Nursing and Midwifery Order 2001, subject to the restrictions in CPR Part 52. The court could exercise its own judgment on the evidence, but should show appropriate deference to the specialist tribunal, especially on professional standards, witness assessment and sanction.
3. An adjournment or further period of suspension was discretionary. The review panel had directed itself to the issue, given ample reasons, and was entitled to conclude that the appellant had had sufficient time. Her failure to address the earlier panel’s guidance, together with the reflective document’s evidence of limited insight and minimisation of dishonesty, justified the conclusion that remediation had not been demonstrated.
4. The review panel had power under Articles 30(2) and 30(4) to replace suspension with striking off. The restriction in Article 29(6) applied only to striking-off orders concerning the specified categories of allegation, including lack of competence and health-related allegations. It did not prevent striking off for dishonesty under Article 22(1)(a)(i). The earlier panel’s conclusion that striking off was then disproportionate did not bind the review panel, particularly in light of material developments between the two decisions.
5. Proportionality required regard to the registrant’s interests, but the essential issue was the need to maintain public confidence in the profession. The review panel’s professional judgment disclosed no error of law, principle or procedural fairness, and the sanction was not disproportionate.

The appeal was brought from the Nursing and Midwifery Council Conduct and Competence Committee’s review decision dated 10 November 2015. The High Court dismissed the appeal and ordered that the striking-off decision take effect.