Mulholland v Conduct and Competence Committee of the Nursing and Midwifery Council

A statutory appeal from a professional disciplinary decision is a re-hearing conducted under Part 52 of the Civil Procedure Rules. The appeal court may intervene where the decision was wrong or unjust because of a serious procedural or other irregularity.

Although the jurisdiction is full, substantial respect is owed to a first-instance panel which saw and heard the witnesses, especially where credibility is central. Primary factual findings will generally be difficult to disturb. In straightforward cases, findings of fact and concise reasons may sufficiently explain the result. More detailed reasons are required in exceptional or complex cases where the basis of the decision would otherwise be unclear.

The appellant, a registered nurse, appealed under article 38 of the Nursing and Midwifery Order 2001 against a Conduct and Competence Committee decision finding her fitness to practise impaired and directing that she be struck off the register.

The disciplinary proceedings concerned alleged misconduct involving residents and colleagues at a nursing home. The appellant challenged the panel’s factual findings, alleged procedural unfairness, and consequential findings on impairment and sanction. The central issues were the proper scope of the statutory appeal, the extent to which the court could revisit credibility-based findings, and whether the panel had given adequate reasons.

1. Appeal dismissed. The appeal was a re-hearing under article 38 of the Nursing and Midwifery Order 2001, dealt with in accordance with Part 52 of the Civil Procedure Rules and Practice Direction 52D. Under CPR 52.11(3), the appeal court could allow the appeal if the panel’s decision was wrong or unjust because of a serious procedural or other irregularity.
2. The jurisdiction was not limited by the court’s inability to hear the witnesses. However, where the first-instance panel had seen and heard the witnesses, and credibility or reliability was central, the appellate court should be slow to interfere with primary factual findings. The panel was entitled to prefer the evidence of other witnesses, reject allegations of collusion, and treat inconsistencies as minor.
3. In relation to secondary evidence, the appellate court might be in as good a position as the primary decision-maker. That distinction did not assist the appellant on the facts of this case.
4. A disciplinary panel was not required to address every facet of the evidence. In a straightforward case, identifying the facts charged and finding them proved or not proved would generally provide sufficient reasons, particularly where it was clear whose evidence had been rejected and why.
5. More extensive reasoning might be required in an exceptional or complex case. The essential question was whether the reasons, expressly or by necessary inference from the decision as a whole, made clear to the losing party why she had lost. The panel’s reasons were clear and sufficient.
6. The panel had fairly conducted the proceedings, notwithstanding that the appellant represented herself for much of the hearing. Its findings were supported by the evidence. Its conclusions on impairment and sanction were open to it and had been carefully considered. The appeal was dismissed.

1. Conduct and Competence Committee of the Nursing and Midwifery Council: found the appellant’s fitness to practise impaired and directed that her name be struck off the register.
2. High Court (Administrative Court): dismissed the statutory appeal.