Enemuwe v Nursing And Midwifery Council

An appellate court reviewing a professional disciplinary panel must show considerable respect to its factual findings, particularly findings based on live evidence and credibility. Intervention is justified only where the decision is wrong, ordinarily meaning plainly wrong, or where a serious procedural irregularity has caused injustice. Relevant background evidence may be admitted if it assists the panel in evaluating the charges, provided the panel does not determine excluded allegations. A charge is sufficiently particularised where the practitioner understands the case to meet and can prepare a defence. Serious misconduct and impairment may be established by the nature and context of the conduct, risk to patients, professional standards and public confidence; proof of actual harm is not an essential prerequisite. Sanction is primarily protective and public-interest focused, and an interim suspension need not be deducted from a later substantive suspension.

The appellant, a registered midwife, appealed under article 38 of the Nursing and Midwifery Order 2001 against a decision of a Conduct and Competence Committee panel. A first panel had found related charges proved, but its decision was quashed by Holman J and the matter was remitted for review and, if necessary, rehearing before a different panel.

The second panel found proved that the appellant had spoken rudely and abruptly to a patient during labour and had used her mobile telephone while providing care. It found serious misconduct, impaired fitness to practise and imposed a three-month suspension. The appeal challenged the review process, admission and assessment of evidence, the findings of fact, the findings of misconduct and impairment, and the proportionality of sanction.

1. Appeal dismissed. The second panel’s findings and three-month suspension were neither wrong nor plainly wrong, and no serious procedural or other irregularity causing injustice was established.
2. Under CPR 52.11(3), an appellate court may intervene where a decision is wrong or unjust because of serious procedural irregularity. In professional disciplinary appeals, however, the court must respect the specialist panel’s expertise and its advantage in hearing live evidence. Findings based on credibility are particularly difficult to disturb and should be reversed only where the evidence demonstrates that the panel was plainly wrong.
3. The second panel was entitled to hear evidence about matters forming the background to the charges, including evidence concerning the patient’s condition and the circumstances in which the words were allegedly spoken. It did not adjudicate the earlier allegations which had not been pursued. Evidence obtained by the supervisory investigator from witnesses was admissible to assess reliability and consistency, whereas the outcome of the supervisory investigation itself had properly been excluded.
4. The mobile-phone charge was adequately particularised. Applying the two-stage test in R (Johnson and Maggs) v The Professional Conduct Committee of the Nursing and Midwifery Council, the appellant had sufficient information to understand the case and prepare her defence.
5. The panel was entitled to accept parts of witnesses’ evidence despite inconsistencies or omissions. It gave coherent reasons for its credibility findings, and the evidence collectively supported both charges. Those findings were not plainly wrong.
6. The panel was entitled to regard the conduct as serious misconduct. The assessment was fact-sensitive and involved the specialist judgment of a professional tribunal concerning the treatment of a vulnerable patient and use of a mobile telephone while providing care.
7. A finding of impaired fitness to practise did not require proof of actual harm or a specific risk of harm. The panel was entitled to consider future risk, remediation, insight, proper professional standards and public confidence. Applying the approach in Council for Healthcare Regulatory Excellence v Grant and Cohen v General Medical Council, the absence of remediation and insight supported impairment.
8. The three-month suspension was proportionate and protective rather than punitive. The panel properly balanced the appellant’s interests against patient protection, professional standards and public confidence. The earlier interim suspension was relevant but, under the applicable guidance and because it served a different purpose, did not require deduction from the substantive sanction.

• High Court (Administrative Court): The appeal against the second Conduct and Competence Committee decision was dismissed.
• Earlier proceedings: A first panel decision had been quashed by Holman J and the matter remitted for review and possible rehearing before a different panel.