Amavih-Mensah v The Nursing and Midwifery Council

An appeal from a professional disciplinary tribunal is by way of rehearing. The court asks whether the tribunal’s decision was wrong, while respecting findings based on witness assessment and professional judgment. Dishonesty requires both that the conduct was dishonest by the ordinary standards of reasonable and honest persons and that the practitioner realised this. A registered nurse must disclose fitness-to-practise concerns and relevant disciplinary history to both an agency and the organisation using the nurse’s services. Repeated and sustained dishonesty, coupled with limited insight, may justify striking off even where clinical practice is otherwise satisfactory and personal mitigation is substantial.

The appellant appealed under article 38(1) of the Nursing and Midwifery Order 2001 against findings by the Nursing and Midwifery Council’s Conduct and Competence Committee. The Committee found multiple failures to disclose previous dismissals and NMC proceedings to agencies and employing trusts, dishonesty, misconduct and current impairment of fitness to practise. It imposed a striking-off order. The appeal challenged the factual findings, the fairness of the procedure, the findings of dishonesty, impairment, mitigation and proportionality.

1. Appeal dismissed. The court found no legal error, procedural unfairness or factual basis for interfering with the Committee’s decision.
2. The appeal was by way of rehearing, applying the approach stated in Cheatle v General Medical Council [2009] EWHC 645. Findings depending on credibility and professional judgment attract appropriate respect, although the court must decide whether the decision was wrong.
3. The Committee correctly applied the two-limb dishonesty test. The questions on the employment forms required disclosure of past as well as current disciplinary matters. Describing a dismissal for misconduct as the contract having ended, leaving a direct question unanswered, and omitting the information from declarations were objectively dishonest. The appellant must have appreciated that significance. Personal difficulties and alleged language difficulties did not provide a credible explanation.
4. A nurse’s duty of openness under paragraph 51 of the professional Code extended to the agency and to the organisation exercising day-to-day management and capable of dismissing the nurse. Disclosure to an agency did not discharge the separate duty owed to the end-user employer. Later attempted disclosures could not answer charges concerning earlier applications and, in any event, the Committee was entitled to find that some were not received.
5. The interim-order review did not prejudice the substantive hearing. The appellant had a fair opportunity to present and challenge the evidence. The findings amounted to misconduct because they involved repeated concealment of information relevant to employers’ assessment of risk and breached fundamental professional standards.
6. Applying the impairment principles in Council for Healthcare Regulatory Excellence v NMC and Grant [2011] EWHC 927, repeated dishonesty breached fundamental tenets, damaged public confidence and raised public-protection concerns. The lack of insight and remorse meant that repetition could not be excluded.
7. Striking off was proportionate. The public-interest purpose of sanction, rather than punishment, required protection of confidence in the profession. Clinical ability, references and personal hardship did not outweigh sustained dishonesty and continuing lack of insight. The Committee’s striking-off order was therefore upheld.

• High Court (Administrative Court): The appeal under article 38(1) of the Nursing and Midwifery Order 2001 was dismissed. The Conduct and Competence Committee’s findings, impairment determination and striking-off order were upheld.