Dhoorah v Nursing and Midwifery Council

A suspension-order review must assess the registrant’s current fitness to practise. The reviewing panel must form its own professional judgment in light of the original concerns and the evidence of remediation since the earlier decision. A further sanction cannot be imposed merely because the original sanction is thought to have been too lenient. The registrant may bear a persuasive burden to demonstrate insight and remediation, but maintaining innocence does not automatically establish a lack of insight. The court will respect the specialist panel’s professional judgment, while correcting material errors of fact or law and inadequate reasons. Reasons should be read holistically. A panel may find current impairment where previously identified concerns have not been addressed and the evidence no longer provides sufficient reassurance against repetition.

The appellant, a registered nurse, appealed against a Nursing and Midwifery Council Fitness to Practise Committee suspension-order review decision. The review panel had extended his suspension by six months after concluding that his insight and remediation remained insufficient, that there was a risk of repeated sexual misconduct towards a junior colleague, and that impairment remained necessary on both public-protection and public-interest grounds.

The appeal challenged the panel’s reasoning, its treatment of reflective evidence and testimonials, its reference to the appellant’s non-attendance and lack of representation, and its treatment of the Covid-19 pandemic as an explanation for the absence of relevant training. The central issue was whether the review panel had lawfully assessed current impairment and imposed a proportionate sanction.

1. The appeal was dismissed. The review panel had reached a permissible professional judgment that the appellant’s fitness to practise remained impaired, and its decision was adequately reasoned.
2. The purpose of a review was to assess current fitness to practise as at the review date. The panel had to consider the original decision and concerns, together with the new evidence, but had to reach its own independent view. The question of impairment was for professional judgment and did not have to be proved as a conventional issue of fact.
3. A further sanction could not be imposed merely because the original suspension was considered too lenient. The panel was nevertheless entitled to reassess current risk where the expected development of insight and remediation had not occurred.
4. The appellant bore a persuasive burden to demonstrate insight into his failings and the seriousness of the misconduct. His continued denial did not necessarily prevent insight, and non-attendance was not necessarily fatal. It meant that the panel had to decide the case on the documentary material available.
5. The panel was entitled to regard the reflective essay as insufficiently connected with the specific misconduct, the testimonials as failing to address professional boundaries and integrity, and the safeguarding course as not shown to address the recommended training in professional boundaries. The pandemic did not remove the appellant’s burden to show what steps he had taken to obtain relevant training.
6. The reference to an unresolved “attitudinal issue” did not conflict with the original panel’s finding that there was no evidence of deep-seated personality or attitudinal problems. The two findings addressed different degrees of remediation. The review panel’s reasoning, read as a whole, sufficiently explained why the absence of further development in insight meant that the earlier reassurance about non-repetition could no longer be maintained.
7. On appeal, the court could allow the appeal if the decision was wrong or unjust because of a serious procedural or other irregularity. It remained cautious about primary factual findings and professional judgments, although less deference was required where the issue concerned sexual misconduct or the protection of public confidence.

The judgment concerned an appeal to the High Court (Administrative Court) from a suspension-order review decision of the Nursing and Midwifery Council Fitness to Practise Committee. The appeal was dismissed.