Antony v Nursing & Midwifery Council

An appellate court reviewing a professional disciplinary decision should show considerable deference to findings based on oral evidence. It should intervene only where the decision is plainly wrong or the reasoning process requires a different conclusion. A finding of current impairment may rest on public protection, but also on maintaining public confidence and proper professional standards. A single incident may justify striking off where it involves violence towards a vulnerable patient, serious departure from professional standards, and insufficient insight into its impact. Personal mitigation and subsequent training do not prevent that sanction where the tribunal reasonably concludes that the conduct is fundamentally incompatible with continued registration.

The appellant, a registered nurse, appealed under article 38(1) of the Nursing & Midwifery Council Order 2001 against a Fitness to Practise Panel determination. The Panel found three allegations proved concerning the grabbing or pinching and slapping of a vulnerable elderly resident, found the appellant’s fitness to practise impaired, and imposed a striking-off order.

The appeal challenged the factual findings, the impairment determination and the sanction. The central issues were whether the Panel had made an error in assessing the evidence, whether the proved misconduct established current impairment, and whether striking off was disproportionate.

1. Appeal dismissed. The appeal was governed by CPR 52.21(3): it could succeed only if the decision was wrong or unjust because of a serious procedural irregularity.
2. Findings based substantially on oral evidence attract considerable deference because the first-instance tribunal saw and heard the witnesses. The appellate court should intervene only where the finding is plainly wrong or the reasoning process requires a different conclusion. Minor inconsistencies, peripheral evidential errors and the absence of a mark after pinching did not undermine the Panel’s findings. The Panel was entitled to accept the principal witness’s evidence and to treat the injury evidence as corroborative. This approach was consistent with Southall v General Medical Council [2010] EWCA Civ 407, Jenyo v General Medical Council [2016] EWHC 1708 (Admin) and Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56.
3. The impairment finding was not confined to the risk of repetition or immediate public safety. The Panel was entitled to consider the appellant’s limited insight into the effect of his conduct on the resident, colleagues, the profession and the public. Public confidence and the maintenance of proper standards were independent bases for finding current impairment.
4. The striking-off order was proportionate. The Panel had considered mitigation and further training, but was entitled to conclude that the assault of a vulnerable patient was a deplorable and fundamentally incompatible departure from professional standards. The fact that it was a single incident did not make striking off impermissible.

• High Court (Administrative Court): The appeal from the Fitness to Practise Panel’s determination of 1 March 2018 was dismissed.