Abbas v The Nursing and Midwifery Council

An appeal from a professional regulatory sanction is a rehearing governed by the ordinary appellate test. The High Court may intervene where the decision was wrong or unjust because of a serious procedural irregularity, but must give appropriate respect to the specialist tribunal’s findings and professional judgment. That respect is especially important when assessing sanction and the measures needed to protect the public and maintain confidence in the profession. A striking-off order may be proportionate for persistent lack of competence where conditions of practice have continued for a substantial period and remediation has not succeeded. Adequate reasons need not address every item of evidence expressly if the determination, read fairly, demonstrates a coherent and sufficient evaluation.

The appellant, a registered nurse, appealed under article 30(10) of the Nursing and Midwifery Order 2001 against a decision of the Nursing and Midwifery Council’s Fitness to Practise Committee. The Committee imposed a striking-off order after the appellant had remained subject to conditions of practice orders for six and a half years because of continuing competence concerns.

She contended that striking off was disproportionate, that the Committee wrongly concluded she would never practise unrestricted, and that its reasons were inadequate. The central issues were whether the Committee’s sanction was wrong, or unjust because of serious procedural or other irregularity, and whether the Committee had given sufficient reasons.

1. Appeal dismissed. The appeal was governed by articles 30(10) and 38(3) of the Nursing and Midwifery Order 2001, CPR rule 52.21(3), and Practice Direction 52D. It was an appeal by way of rehearing, but not a rehearing in the full sense. The court could correct material errors of fact or law and substitute its own decision where appropriate, while respecting the specialist panel’s primary findings and professional judgment.

2. The appropriate appellate approach required particular respect for the Committee’s assessment of professional competence, sanction, public protection and public confidence. That respect did not remove the court’s jurisdiction to decide whether the sanction was appropriate and proportionate. The Committee’s principal purpose was regulatory rather than retributive.

3. The Committee had applied the statutory objectives and the NMC sanctions guidance. It considered the available sanctions in ascending order of severity and addressed proportionality, public protection, public confidence and professional standards. Its conclusion that further conditions would not serve a useful long-term purpose was open to it after six and a half years of restrictions and continuing deficiencies in basic nursing competence.

4. The Committee was entitled to attach significant weight to the matron’s evidence, given her seniority, knowledge of the conditions and prolonged contact with the appellant. It was also entitled to conclude that the deficiencies remained outstanding despite training, and to give greater weight to that evidence than to general testimonials.

5. The reasons were clear and sufficient. The Committee had taken account of the appellant’s admission, insight, training, employment difficulties and efforts to improve. The expression of regret at striking her off did not show that the sanction was unnecessary.

6. The Committee was entitled to impose a striking-off order even though the Case Presenter had submitted that a further conditions of practice order could be appropriate. The advice that conditions could not continue indefinitely was not challenged as wrong in principle. Another panel might have allowed one further opportunity, but that did not make this Committee’s decision wrong.

• High Court (Administrative Court): dismissed the appeal against the Fitness to Practise Committee’s striking-off order made on 23 November 2018.