Vitalis v The Nursing And Midwifery Council

A professional disciplinary tribunal applying the two-stage R v Ghosh test must assess both the respondent’s conduct and the respondent’s state of mind. A tribunal may reject an asserted innocent belief where its reasons adequately evaluate the evidence. A good character direction is not invariably required in a professional disciplinary case, particularly where the tribunal is already aware of the registrant’s character and the representative does not seek further direction. Where the factual findings are upheld, consequential findings of impaired fitness to practise and sanction will stand unless independently challenged.

The appellant, a registered nurse, appealed under article 38(1) of the Nursing and Midwifery Order 2001 against a Conduct and Competence Committee decision. The Committee found that she had dishonestly represented that she had the right to work in the United Kingdom, found misconduct and impaired fitness to practise, and directed that she be struck off.

The appellant was not present or represented at the appeal. Her written grounds challenged the dishonesty finding, the absence of a good character direction, and the consequential findings on impairment and sanction. The central questions were whether the Committee had correctly applied the dishonesty test, whether the absence of a good character direction rendered the decision unfair, and whether the sanction was open to it.

1. Appeal dismissed. The appellant’s absence did not prevent the court from determining the appeal. In the circumstances, it was fair to proceed on the written submissions and the respondent’s oral submissions.
2. The Committee had correctly been directed to apply the two-stage test in R v Ghosh (1982), including the subjective second stage. Its task was to decide whether the appellant knew that she lacked the right to work and dishonestly made representations to the contrary.
3. The Committee’s rejection of the appellant’s asserted genuine belief was adequately reasoned. It evaluated her evidence and relied on matters including her immigration history, applications to public authorities, use of solicitors, and the restrictions recorded in her passport. The conclusion that her evidence was implausible and not credible was one the Committee was entitled to reach.
4. The decision in Lavis v NMC [2014] EWHC 4083 (Admin) concerned whether an incorrect entry in records had been made dishonestly. It did not alter the Committee’s task in the present case, which was to evaluate the evidence concerning the appellant’s knowledge of her work status.
5. A good character direction may be useful where appropriate, and good character may be relevant to credibility. However, Wisson v HPC [2013] EWHC 1036 (Admin) did not establish that failure to give such a direction was necessarily a legal misdirection. The appellant’s representative had accepted at the hearing that no further direction was necessary at the fact-finding stage.
6. The challenge to impairment and sanction was consequential on the first two grounds and disclosed no independent basis for interference. The sustained dishonest course of conduct justified striking off. There was no merit in any ground of appeal.

• Conduct and Competence Committee: found all charges proved, determined that the appellant had committed misconduct and that her fitness to practise was impaired, and directed that she be struck off.
• High Court (Administrative Court): dismissed the appeal under article 38(1) of the Nursing and Midwifery Order 2001.