Ayettey v Nursing and Midwifery Council

On an appeal against a professional disciplinary sanction, the court must respect the expertise of the disciplinary tribunal. Absent an error of law, intervention is justified only where the sanction is clearly inappropriate. Dishonesty by a registered nurse in concealing disciplinary proceedings and dismissal from a prospective employer may constitute serious misconduct because it creates a risk to the public and undermines professional confidence. Limited insight and a continuing risk of repetition may justify striking off, even where the practitioner has an otherwise unblemished career, positive competence references, stressful personal circumstances and no proved injury to others. A sanction is not disproportionate merely because the practitioner remains capable of valuable professional work.

Mr Ayettey appealed under article 38 of the Nursing and Midwifery Order 2001 against a striking-off order imposed by a Conduct and Competence Committee of the Nursing and Midwifery Council. A first panel had found that he dishonestly failed to disclose disciplinary proceedings and dismissal when applying to work for Pulse Healthcare Limited. On an earlier appeal, Holman J set aside findings concerning separate sexual-misconduct charges but left the findings on dishonesty unaffected: [2016] EWHC 604 (Admin). A differently constituted panel later found misconduct and current impairment and imposed striking off. The central issues were whether the sanction was clearly inappropriate or disproportionate, and whether procedural irregularity or the panel’s assessment of dishonesty, insight, remediation, risk and mitigation justified intervention.

1. The appeal was dismissed. Under article 38(3) of the Nursing and Midwifery Order 2001 and CPR 52.21, the court could allow the appeal only if the sanction was wrong or unjust because of a serious procedural or other irregularity. The approach in Salsbury v Law Society [2008] EWCA Civ 1285, [2009] 1 WLR 1286, required considerable respect for the expert tribunal, while permitting intervention if the sanction was clearly inappropriate.
2. The findings that Mr Ayettey knowingly concealed disciplinary proceedings and dismissal were final and could not be indirectly challenged. His dishonesty was not properly characterised as a minor white lie. It involved repeated concealment over an extended period, despite a duty to disclose, and created a risk that prospective employers could not assess risks to the public.
3. The panel was entitled to find misconduct. Breach of the NMC Code did not automatically amount to misconduct, but the deliberate provision of false information fell seriously below the standards expected of a registered nurse.
4. The findings of limited insight, inadequate remediation and a continuing risk of repetition were supported by Mr Ayettey’s inconsistent and confused evidence. Acts of dishonesty were not easily remediable. Stress and personal circumstances were relevant mitigation, but the panel was entitled to consider the possibility that similar stress could recur.
5. The panel had considered the aggravating and mitigating features, including the unblemished career, competence references, family responsibilities and stress. Its conclusion that lesser sanctions would not protect the public or maintain confidence in the profession was not clearly inappropriate or disproportionate. A striking-off order was therefore upheld.

1. High Court (Administrative Court): the present appeal against the striking-off order was dismissed.
2. High Court (Administrative Court): on the earlier appeal, Holman J allowed the appeal in part, setting aside and remitting the findings on separate sexual-misconduct charges, but left the dishonesty findings unaffected: [2016] EWHC 604 (Admin).