Lusinga v Nursing And Midwifery Council

In a professional disciplinary appeal, the court must correct material errors but should respect the specialist tribunal’s judgment and avoid conducting a resentencing exercise. Dishonesty does not automatically require striking off. Its nature, seriousness, degree of deception, financial consequences, effect on patients and prospects of rehabilitation must be assessed. Mitigation must be properly evaluated before suspension is rejected, particularly because striking off then becomes the only outcome. Findings of inadequate insight or false remorse require convincing reasoning. A regulatory panel should not treat lawful secondary employment as inherently unsafe or dishonest, or compare minor contractual concealment with criminal fraud without examining the differences. Where striking off is disproportionate and the case does not require specialist clinical judgment, the appellate court may substitute an appropriate suspension.

The appellant, a nurse, appealed against the Nursing and Midwifery Council panel’s decision to strike him from the register for misconduct. The panel found proved that he had failed to inform his principal employer of additional nursing employment and had dishonestly concealed it. The appellant did not challenge the findings of misconduct or impairment, but argued that the sanction was disproportionate, that mitigation had been inadequately assessed, and that findings concerning dishonesty, insight, remorse and risk were unsupported.

The central issue was whether striking off was a proportionate and lawful sanction, or whether suspension should be imposed instead.

1. Appeal allowed. The panel had made material errors in its assessment of the charge, the appellant’s evidence, mitigation, insight, risk and sanction. Striking off was disproportionate.
2. The court’s role was supervisory. It could intervene where the panel’s decision was wrong, but should respect the panel’s expertise and should not ordinarily conduct a fresh sentencing exercise. The approach in Bolton v Law Society [1994] 1 WLR 512 did not make striking off inevitable in every case involving dishonesty.
3. The charge was poorly drafted. The appellant’s apparent admission of dishonesty concerned his failure to notify his employer, rather than dishonesty understood by reference to the two-stage Ghosh test. It was unfair to treat the clarification of his position as inconsistency or aggravation.
4. This was concealment without active deception, fraudulent gain or criminal conduct. The additional employment was not unlawful in itself, and permission could not unreasonably have been withheld. The panel had not found that any patient was endangered or that the appellant was clinically incompetent. Those distinctions were material to proportionality.
5. Mitigation had to be evaluated properly before suspension was rejected. The panel failed adequately to consider the appellant’s personal circumstances, work history, positive testimonials, disclosure to his employer, absence of previous impairment findings and lack of repetition. Its rejection of the reflective piece depended on the earlier error concerning his evidence.
6. The proposition that false mitigation is aggravation required extreme caution. Treating remorse, contrition and insight as aggravating features required convincing reasoning, which was absent here. The findings of a deep-seated attitudinal problem and increased patient risk were unjustified.
7. The court declined to remit the case because the errors could not fairly be reconsidered by the original panel and the case did not require specialist judgment about substandard clinical practice. It substituted a suspension expiring at midnight on 4 September 2017, one year from the panel’s orally announced decision.
8. Obiter, the court suggested that the Indicative Sanctions Guidance should distinguish different forms and degrees of dishonesty, and that any concern about excessive working hours should be addressed by a direct and generally applicable obligation.

1. High Court (Administrative Court): The appeal against the NMC panel’s striking-off sanction was allowed. The court substituted a period of suspension expiring at midnight on 4 September 2017.