Kavaarupo v Nursing And Midwifery Council

In an appeal from a professional regulator, procedural grounds must be pleaded with sufficient precision. Permission to introduce a late challenge to factual findings may be refused where there is no good reason for the delay and the amendment would prejudice the regulator. Findings based on witness credibility and inferences from primary facts are not lightly disturbed. An appellate court should interfere with a multi-factorial sanction decision only for an error of principle or where the decision falls outside the range reasonably open to the tribunal. A striking-off order removes the registrant from the register and prevents practice under any registered designation.

The appellant was registered as both a nurse and a midwife. Following a 15-day fitness-to-practise hearing, a Nursing and Midwifery Council panel found 22 of 42 charges proved, including misconduct, dishonesty in a clinical setting and conduct placing patients at unwarranted risk of harm. It imposed a striking-off order and an interim suspension order covering the whole registration.

The appellant appealed under article 38(1) of the Nursing and Midwifery Order 2001. She argued that the panel had misunderstood the effect of striking-off, because the allegations concerned midwifery practice, and that a conditions of practice order restricting her from midwifery would have been proportionate. At the hearing she also sought to add a late challenge to the dishonesty finding. The central issues were whether amendment should be permitted, whether the panel understood the scope of its sanction, and whether the sanction was legally or evaluatively flawed.

1. Late amendment. Permission to amend the grounds to challenge the dishonesty finding was refused. Procedural rigour applies to appeals from professional regulators as well as to judicial review proceedings. The appellant gave no good reason for omitting the challenge earlier, and allowing it would prejudice the respondent by requiring an adjournment or further analysis of voluminous transcripts.
2. Factual findings. Findings based on the assessment of witnesses who gave oral evidence, and inferences drawn from primary facts, are not lightly set aside. The panel had heard and cross-examined the relevant witnesses and was entitled to infer that the dishonest clinical record was made to protect the appellant from a further complaint or investigation.
3. Effect of striking-off. The panel understood that a striking-off order prevented the appellant from practising either as a midwife or as a nurse. The Nursing and Midwifery Order 2001 and the Sanctions Guidance showed that a restriction to one profession could be achieved through conditions of practice, whereas suspension or striking-off applied to the whole registration. The panel had considered conditions of practice and reasonably concluded that they could not address the attitudinal failings and dishonesty, which were relevant to nursing as well as midwifery.
4. Sanction and appellate review. The sanction decision was multi-factorial. The court could interfere only if the panel had made an error of principle or if its evaluation fell outside the bounds of what it could properly and reasonably decide. No such error was established. The findings of repeated serious misconduct, dishonesty, risk to patients, breach of fundamental professional tenets and limited insight placed striking-off within the range reasonably open to the panel.
5. The appeal was dismissed.

1. Nursing and Midwifery Council Fitness to Practise Committee: following a hearing between 13 and 31 May 2019, the panel found 22 charges proved, imposed a striking-off order and made an interim suspension order covering the appellant’s whole registration.
2. High Court (Administrative Court): the appeal under article 38(1) of the Nursing and Midwifery Order 2001 was dismissed.