Keasey v Nursing And Midwifery Council

An appeal from a professional-discipline panel is ordinarily by way of review, not rehearing. The appellate court may examine factual findings and the application of law, but the appellant must show that the decision was wrong or unjust because of serious procedural or other irregularity. Deference is greatest where findings depend on oral evidence and credibility, and intervention requires objective grounds showing that the decision is plainly wrong or outside the generous ambit of reasonable disagreement. A tribunal’s reasons must be intelligible and sufficient to show why the parties won or lost, although detailed reasons for factual findings are required only where fairness demands them. Serious allegations do not, without more, require a special direction that cogent evidence is necessary.

Mr Keasey appealed under Article 38(1) of the Nursing and Midwifery Order 2001 against a Conduct and Competence Committee finding that his fitness to practise as a nurse was impaired by misconduct. The Panel found proved that he lay beside a female healthcare support worker, touched her breast and made a sexualised remark. It imposed a 12-month suspension order and an interim suspension order.

The appeal challenged the factual findings, the Panel’s approach to inconsistencies and evidence, its reasons, and the standard of proof. The sanction challenge was not pursued. The central issue was whether the Panel’s decision was wrong or unjust because of serious procedural or other irregularity.

1. Appeal dismissed. The challenge to sanction was not pursued, and the finding that lying beside Colleague A was proved was not challenged. The remaining factual findings, including touching and the associated remark, were open to the Panel.
2. Under Article 38(3) of the Nursing and Midwifery Order 2001, the court may dismiss or allow the appeal, quash or substitute the decision, remit the case, and make costs orders. The appeal is ordinarily by way of review under CPR 52.21.3. It is not a rehearing. The court may engage with the merits of factual findings, but the starting point is that the decision below is correct unless the appellant shows objective grounds requiring a different conclusion.
3. The required deference depends on the issue. It is substantial where the Panel assessed disputed oral evidence and credibility. The court will intervene only where the finding is plainly wrong, or exceeds the generous ambit within which reasonable disagreement is possible. It is insufficient that the appellate judge might have reached a different conclusion.
4. The Panel was entitled to assess inconsistencies in the competing accounts differently. Its acceptance of Colleague A’s account, despite discrepancies about sleep, the precise nature of the touching and the police statement, was not irrational or unavailable on the evidence. The Panel was also entitled to take account of Mr Keasey’s conduct when asked to leave, and its reasons did not require a more detailed treatment of the evidence about the emails.
5. Reasons must be intelligible and address the substance of the principal arguments so that the parties can understand why they won or lost. There is no general requirement to give detailed reasons for factual findings, but fairness may require reasons in an exceptional case. The Panel’s reasons met that standard.
6. The civil standard of proof was correctly applied. In light of Re B (Children) [2008] UKHL 35, seriousness does not create a logical or necessary requirement for a separate direction that cogent evidence is needed. Nor was the Panel required to consider an accidental touching while Mr Keasey was asleep, since his case was that he was awake, or sufficiently awake, to know what he was doing.

• High Court (Administrative Court): dismissed the appeal under Article 38 of the Nursing and Midwifery Order 2001, upholding the Conduct and Competence Committee’s findings and suspension order.
• Conduct and Competence Committee of the Nursing and Midwifery Council: on 11 July 2017 found misconduct and current impairment of fitness to practise, and imposed a 12-month suspension order.