Holder v Nursing And Midwifery Council

A statutory appeal from a professional disciplinary decision is neither a de novo hearing nor confined to ordinary judicial review. The appellate court may exercise its own judgment, but should interfere only where the tribunal’s decision is wrong, including where the evidence is insufficient or the inference drawn is unsustainable. Particular weight is given to a specialist panel’s assessment of professional conduct, impairment, credibility and future risk. Findings based on conflicting oral evidence will be disturbed only exceptionally. A panel may infer seriousness, attitudinal problems and risk of repetition from the proved conduct and the evidence as a whole; expert psychiatric evidence is not necessarily required. A staged sanctions analysis addressing the relevant guidance, aggravating and mitigating factors and the alternatives will ordinarily withstand challenge where its factual conclusions and reasons are cogent.

The appellant, a registered nurse, appealed against the Nursing and Midwifery Council’s decision of 3 August 2015 striking her from the register for misconduct. The misconduct findings concerned repeated inappropriate and unprofessional conduct towards colleagues and patients over more than two years. The Conduct and Competence Committee found impairment, lack of insight, a significant risk of repetition and deep-seated attitudinal problems, and rejected conditions and suspension before imposing striking off.

The appeal challenged the factual findings, procedural fairness, the assessment of seriousness and future risk, and the proportionality and evidential basis of the sanction. The central issues were the proper approach to a statutory appeal, the extent to which the court should defer to the specialist panel, and whether the panel’s reasoning and sanction were legally sustainable.

1. Appeal dismissed. The court rejected the challenges to the Conduct and Competence Committee’s findings and sanction.
2. The statutory appeal was not a de novo hearing, but neither was it limited to review. The court could exercise its own judgment. In practice, intervention was justified where the evidence was lacking or an inference was unsustainable. The specialist status of the panel required a secondary exercise of judgment, and findings based on credibility and conflicting oral evidence attracted considerable weight.
3. The panel was entitled to determine that the repeated conduct was serious and would be regarded as deplorable by fellow practitioners. Such an assessment was an evaluative judgment which could be drawn from the primary evidence; it did not require a parade of witnesses expressing approval or disapproval. The court noted that seriousness and deplorability were not necessarily identical tests, but held that the panel’s conclusions were open to it on the facts.
4. The panel was also entitled to infer impairment, future risk and a serious attitudinal problem from the evidence, including the appellant’s lack of insight and failure to recognise the significance of the misconduct. Expert psychiatric evidence was not a necessary precondition to that conclusion.
5. The sanctions reasoning was staged and logical. The panel considered the alternatives in order, applied the Indicative Sanctions Guidelines, identified aggravating and mitigating circumstances, and explained why no action, a caution, conditions or suspension would sufficiently protect patients or the public interest. Given the repeated misconduct, lack of insight and inferred risk of repetition, the conclusion that conditions were unworkable and suspension insufficient was justified.
6. The panel’s decision contained intelligent and cogent reasons. It was not required to address every procedural development or every piece of evidence individually.

The judgment records an appeal to the High Court (Administrative Court) against the Nursing and Midwifery Council’s decision of 3 August 2015. The appeal was dismissed.