McGuinness v Nursing and Midwifery Council

A statutory appeal from a professional disciplinary decision is conducted by way of rehearing, but the appeal court should interfere only where the decision was wrong or unjust because of serious procedural or other irregularity. Findings of fact, particularly those based on witness assessment, require respect, although the court may exercise its own judgment. Professional judgments and sanctions attract particular deference to the specialist tribunal. A panel need give reasons addressing the salient issues, but need not deal with every evidential detail. In an adversarial disciplinary process, parties must raise disclosure and evidential complaints before the panel. A striking-off order may be proportionate where serious clinical failings and dishonesty create significant risks to patients and undermine public confidence.

The appellant, a nurse, appealed under articles 29(9) and 38 of the Nursing and Midwifery Order 2001 against a Conduct and Competence Committee decision dated 18 August 2015. The panel found several clinical failings, including failures concerning medication administration and records, together with two dishonest attempts retrospectively to alter or conceal records. The appellant challenged the findings as unsupported by the evidence, complained of procedural unfairness and non-disclosure, and argued that the striking-off order was disproportionate. The central questions were whether the panel’s findings were wrong or procedurally unjust, and whether the sanction was proportionate.

1. The appeal was dismissed. Under Part 52 of the Civil Procedure Rules 1998, the appeal was by way of rehearing, but the court would allow it only if the panel’s decision was wrong or unjust because of a serious procedural or other irregularity.

2. The court could exercise its own judgment on factual findings, but findings based on credibility were difficult to overturn. The appellate focus had to be calibrated to the issue. Where the panel made professional judgments about nursing standards, the court had to give special weight to the specialist tribunal. The panel was required to address salient issues, not every detail of the evidence.

3. The panel was entitled to prefer the evidence of the relevant nursing witnesses, supported by contemporaneous records and inherent probabilities, over the appellant’s explanations. Possible inconsistencies, the absence of further documents and the possibility that another panel might have reached a different conclusion did not show that the findings were wrong. The allegations of bullying and victimisation did not require a different result, and the adversarial nature of the process meant that the appellant had responsibility for pursuing cross-examination, disclosure requests and any forensic evidence relied upon.

4. The panel’s findings of misconduct and current impairment were not challenged on a sustainable basis. The panel had given adequate reasons for the medication and record-keeping findings, including the findings of dishonesty.

5. The striking-off order was proportionate. The panel was best placed to assess the gravity of the misconduct, the risks to patients, remediation and the public interest. In light particularly of the dishonesty findings, it was entitled to conclude that no practicable and workable conditions could be formulated. The appeal therefore failed and was dismissed.

• High Court (Administrative Court): The statutory appeal against the Conduct and Competence Committee decision dated 18 August 2015 was dismissed.