Mirtorabi v Nursing And Midwifery Council

On a professional regulatory appeal by way of rehearing, the High Court conducts a secondary review without hearing the evidence again. It must correct material errors of fact or law and procedural injustice, while giving appropriate respect to the specialist tribunal’s assessment of professional standards, witnesses and sanction.

The court should not re-sentence or substitute its own view merely because another outcome was possible. Previous regulatory findings may properly inform impairment and sanction where they bear on remediation, insight, repetition and public protection. A striking-off order may be proportionate where serious repeated misconduct, limited insight and a high risk of repetition mean that lesser sanctions would not protect the public or maintain confidence in the profession.

The appellant, a registered nurse, appealed under articles 29(9) and 38 of the Nursing and Midwifery Order 2001 against a Conduct and Competence Committee decision striking her from the register.

The charges concerned failures in medication administration and record-keeping while working as an agency nurse. The Committee also considered the appellant’s previous regulatory history, including a prior suspension and a conditions of practice order. The appeal challenged the weight given to that history and the proportionality of striking-off compared with lesser sanctions.

The central issues were whether the Committee had acted wrongly or unjustly and whether the sanction was proportionate.

1. Appeal dismissed. The appeal was a rehearing under articles 29(9) and 38 of the Nursing and Midwifery Order 2001, but, as explained in Fish v General Medical Council [2012] EWHC 1269 (Admin), without hearing the evidence again. Under CPR rule 52.11, the court could allow the appeal only if the decision was wrong or unjust because of serious procedural irregularity.

2. The specialist tribunal was entitled to respect in assessing professional standards, primary and secondary facts, witness evidence and the evaluative questions of impairment and sanction. The High Court’s review remained a firm secondary judgment. It was not an exercise in re-sentencing and did not permit substitution of one view of the merits for another.

3. The Committee was entitled to consider the appellant’s previous disciplinary decisions. Under rule 24(13)(c) of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, previous history could be considered on sanction. The history was directly relevant to remediation, insight and the likelihood of repetition. Similar medication-related misconduct over a prolonged period justified treating the history as a pattern of misconduct.

4. The Committee was also entitled to take account of the earlier dishonesty finding when assessing the appellant’s failure to give clear and prompt instructions about her employment history. That did not amount to finding that she had acted dishonestly in the present proceedings.

5. The Committee correctly applied proportionality and considered the sanctions in ascending order of seriousness. Conditions of practice were insufficient because the appellant had not demonstrated remediation and the Committee was gravely concerned about her ability to respond to further training and supervision. Suspension was insufficient because the misconduct was repeated, insight was limited and the risk of repetition was very high.

6. Given the serious departures from professional standards, persistent lack of insight and absence of a real likelihood of safe practice in the foreseeable future, striking-off was proportionate. The appellant had not established that the Committee’s decision was wrong or unjust. The appeal was dismissed.

The judgment does not state the citation of any earlier court decision in the same proceedings. It records an appeal to the Administrative Court from the Conduct and Competence Committee of the Nursing and Midwifery Council, whose striking-off decision was upheld.