Doherty v The Nursing and Midwifery Council

Registration and renewal are governed by a binary good-character assessment distinct from disciplinary fitness-to-practise proceedings, which offer graduated sanctions. The Registrar or Registration Appeal Panel must apply its own statutory criteria. It need not ask whether the conduct would justify striking-off, and refusal may be justified where disciplinary proceedings might instead result in suspension or conditions. Good character may concern public protection, public confidence and professional standards, not merely direct patient risk. On appeal, the court may interfere only if the specialist panel’s decision was wrong, giving appropriate respect to its assessment and its advantage in hearing evidence.

The appellant, a nurse, was convicted of a second drink-driving offence and disclosed it when applying to renew her registration. The Registrar refused renewal on the ground that she did not satisfy the good-character requirement. A Registration Appeal Panel upheld that decision, and HHJ Freedman dismissed her appeal in the Sunderland County Court on 19 June 2015.

Before the Court of Appeal, she argued that the Panel should have applied the same standard as a fitness-to-practise committee deciding whether to strike her off, and that the conviction did not justify refusal in light of the mitigating evidence. The central issues were whether the registration and disciplinary regimes required the same approach and whether the Panel’s substantive conclusion was wrong.

The appeal was dismissed.

1. Separate statutory regimes. The Nursing and Midwifery Order of Council 2001 and the Registration Rules establish separate procedures for registration or renewal and for fitness to practise. Registration involves a binary decision: the application is granted or refused. Fitness-to-practise proceedings provide graduated sanctions, including striking-off, suspension, conditions of practice and a caution.
2. The Registrar or Registration Appeal Panel must apply the specified registration criteria. It is not required to apply the Indicative Sanctions Guidance or to ask whether the conduct would justify striking-off. A conviction may justify refusal of registration even though, in disciplinary proceedings, it might justify only suspension or conditions. Maintaining the two regimes separately may produce different outcomes without creating an impermissible double standard.
3. The good-character assessment concerns whether the applicant is capable of safe and effective practice. It may take account of direct public risk, the maintenance of public confidence in the profession and proper professional standards. Fleischmann [2005] EWHC 87 (Admin) and Jideofo [2007] EW Misc 3 did not govern the distinct registration question, although their recognition of different considerations between admission and discipline was unexceptionable. The approach was consistent with Bolton v The Law Society [1994] 1 WLR 512 and R (Low) v General Osteopathic Council [2007] EWHC 2839 (Admin).
4. On an appeal from a specialist professional panel, the court may intervene only if the decision was wrong. It must give appropriate respect to the panel’s assessment of professional standards and allow for its advantage in hearing and observing the appellant’s evidence: Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46, [2007] 1 WLR 1460.
5. The Panel was entitled to regard the conviction as serious because it was the appellant’s second similar offence within five years, involved an alcohol level more than three times the limit, resulted in an accident in a hospital car park, and was accompanied by an implausible explanation and a risk of repetition. The mitigating evidence did not make its conclusion irrational or wrong. The appeal was therefore dismissed.

• Court of Appeal (Civil Division): [2017] EWCA Civ 1344; appeal dismissed.
• Sunderland County Court: HHJ Freedman, judgment handed down on 19 June 2015; appeal from the Registration Appeal Panel dismissed.