Wisniewska v Nursing Midwifery Council

Where the realistic sanction choices are suspension or striking off, a professional disciplinary panel must evaluate all relevant mitigation when considering suspension as well as when considering striking off. Assertions and conclusions cannot replace coherent reasoning showing the weight given to mitigation and guidance.

A finding that misconduct created a risk of patient harm must be supported by evidence and reasoning. It cannot be supplied retrospectively by counsel. Dishonesty is highly serious and may justify striking off, but striking off is not an automatic or default outcome. The sanction must remain proportionate and may include the public interest in a safe return to practice.

The appellant, a nurse, appealed under article 38 of the Nursing and Midwifery Order 2001 against the NMC’s decision to strike her off the register following findings of repeated dishonesty in failing to disclose fitness-to-practise proceedings and relevant employment history.

Current impairment had been conceded on public-interest grounds. The grounds of appeal challenged the panel’s evaluation of mitigation, its finding of a risk of patient harm, and its conclusions concerning insight and remediation. The central questions were whether the panel’s reasoning was legally adequate and whether the striking-off sanction was proportionate.

1. The appeal was allowed. The panel’s decision could not be sustained because its reasoning did not show what weight it had given to the substantial mitigating features or to the Indicative Sanctions Guidance. Where only suspension and striking off are realistically available, mitigation must be evaluated at the suspension stage as well as at the striking-off stage. This approach was supported by Brennan v Health Professions Council [2011] EWHC 41 (Admin) and O v Nursing and Midwifery Council [2015] EWHC 2949 (Admin).

2. The panel’s conclusion that the appellant posed a risk of harm to patients was unsupported. There was no evidence that she had put a patient at risk, and her misconduct had not occurred in the course of clinical duties. The respondent’s proposed explanation was an impermissible ex post facto rationalisation. Since the panel had relied on the alleged risk in imposing striking off, the error was material.

3. The findings concerning insight and remediation were irrationally expressed and inconsistent with the evidence. In particular, the conclusion that there was no evidence of remediation, and the suggestion that the appellant had placed her wellbeing above patients, were unsustainable. Those errors undermined the reliability of the sanction decision.

4. Dishonesty is a serious departure from professional standards and will always make striking off a possible outcome. It is not, however, an automatic or default outcome. The seriousness of the dishonesty had to be assessed together with remorse, insight, admissions, efforts to prevent repetition, subsequent practice, corrective steps and other mitigation. The public interest may include the safe return of a nurse to practice. Sanctions are principally protective rather than punitive, and proportionality must be applied: Parkinson v Nursing and Midwifery Council [2010] EWHC 1898 (Admin); Bolton v Law Society [1994] EWCA Civ 32; Huang v Secretary of State for the Home Department [2007] UKHL 11.

5. The court was able to exercise the committee’s powers rather than remit the matter. Since the only alternative sanction was suspension, and the appropriate period could be assessed on the material before the court, a 12-month suspension order was substituted, applying the approach in Giele v General Medical Council [2005] EWHC 2143 (Admin) and Isaghehi v Nursing and Midwifery Council [2014] EWHC 127 (Admin).

1. High Court (Administrative Court): appeal under article 38 of the Nursing and Midwifery Order 2001 allowed. The NMC’s striking-off order was set aside and a 12-month suspension substituted.