Kearsey v Nursing And Midwifery Council

In a professional disciplinary appeal, procedural defects do not automatically invalidate proceedings. The court must examine whether the defect caused unfairness or prejudice.

Where fitness to practise is impaired by reason of a conviction, admissible evidence is not confined to the bare fact of conviction. It may include facts proved or considered in the criminal proceedings, including matters relevant to sentence and the registrant’s attitude to the offending. Evidence need not be separately charged as misconduct where it is fairly relevant to impairment or sanction.

Sanction reasons are adequate when read with the findings on misconduct and impairment. Deliberate dishonesty, violence, lack of insight, non-engagement and risk of repetition may justify erasure.

The appellant, a registered nurse, appealed under article 38 of the Nursing and Midwifery Order 2001 against a Conduct and Competence Committee decision finding misconduct, impairment of fitness to practise and imposing erasure.

The charges included a conviction for assault, failure to disclose the conviction to his employer and the NMC, and giving his employer a knowingly false account. The appeal challenged notice, proceeding in his absence, reliance on an investigatory interview, use of evidence concerning wider abusive behaviour, and the adequacy of the sanction reasoning.

1. Appeal dismissed. The Panel’s decision was neither wrong nor unjust.
2. The failure to serve every document initially intended to be relied upon did not invalidate the notice of hearing. The documents were excluded, no prejudice was identified, and the purpose of the notice was achieved. Public law does not require every procedural breach to invalidate subsequent proceedings.
3. The Panel was entitled to proceed in the appellant’s absence. Notices had been sent to his registered address and two further addresses obtained through tracing enquiries. His prolonged refusal to engage, absence of any adjournment request and failure to respond provided ample material for the conclusion that his absence was voluntary.
4. The evidence concerning the conviction was properly considered at impairment and sanction. Under rule 31 of the Nursing and Midwifery (Fitness to Practise) Rules, the findings of fact underlying a conviction are admissible. That evidence is not limited to facts establishing guilt in a narrow sense, but may include circumstances relevant to sentence, the seriousness of the offending and the registrant’s attitude.
5. The previous assault and abusive relationship did not have to be separately charged as misconduct. The governing question was whether their admission at the impairment and sanction stages was relevant and fair. The same approach may apply to evidence relevant to misconduct, depending on the defence, mitigation and circumstances. The court added that, even if the Panel had erred, its conclusions would have been the same without the disputed evidence.
6. The sanction reasons were sufficient. The Panel identified the aggravating and mitigating features, applied proportionality, considered the available sanctions and explained why erasure was necessary to protect the public and maintain confidence in the profession and regulator. The guidance and Parkinson v NMC supported the conclusion that deliberate dishonesty, non-engagement, lack of insight and risk of repetition placed the appellant at severe risk of erasure.

The judgment does not state a prior appellate decision. The appeal was brought to the High Court under article 38 of the Nursing and Midwifery Order 2001 against the Nursing and Midwifery Council Panel’s decision of 27 November 2015.