Neneh Fofanah v Nursing and Midwifery Council

On an appeal under section 29 of the Nursing and Midwifery Council Order 2001, a Fitness to Practise Panel must treat a certified criminal conviction as conclusive proof of the conviction, and the facts underlying it as proof of those facts, subject only to the limited rebuttal permitted by the applicable rules.

The panel must assess impairment and sanction for regulatory purposes, which differ from the punitive purposes of criminal proceedings. Repeated dishonesty, absence of insight and an asserted belief that the conduct was proper may justify findings of impairment, risk of repetition and striking off. A pending review or challenge to the conviction does not permit the panel or appellate court to go behind it.

The appellant, a registered mental health nurse, was convicted after trial of six fraud offences involving dishonest representations to obtain sick pay or compassionate leave while undertaking paid nursing work elsewhere. She was sentenced to a suspended term of imprisonment and other requirements.

The Nursing and Midwifery Council’s Fitness to Practise Panel treated the conviction and its underlying facts as conclusive, found impairment, and ordered that the appellant be struck off. The appellant appealed under section 29 of the Nursing and Midwifery Council Order 2001, alleging miscarriage of justice, inadequate consideration of mitigation, errors concerning impairment and insight, and disproportionate sanction.

1. The appeal was dismissed. Under CPR Part 52.21, the court had to determine whether the Panel’s decision was wrong or unjust because of a serious procedural irregularity. The court had regard to the Panel’s expertise and discretion but was required to exercise its own judgment.

2. Rules 31(2) and (3) of the Fitness to Practise Rules required the Panel to treat the certified conviction as conclusive and the jury’s necessary findings as proof of the underlying facts. In this case those facts included the making of false representations, their falsity, dishonesty and the requisite intent. The appellant’s continuing challenge and the CCRC review did not alter that position unless and until the conviction was overturned.

3. The regulatory jurisdiction was distinct from the criminal sentencing jurisdiction. Its purposes included preventing repetition and maintaining public confidence and professional standards. Mitigation relevant to criminal punishment, including a recommendation that the appellant return to work, did not determine the regulatory sanction.

4. The Panel was entitled to find impairment and a risk of repetition from the appellant’s persistent position that she had done nothing wrong. Although the appellant could not realistically express remorse or insight while maintaining that position, the absence of insight remained relevant to impairment and repetition risk.

5. The Panel was entitled to find no mitigation relating to the particular offences, because it was bound to proceed on the basis of repeated deliberate dishonesty. In the circumstances, striking off was not disproportionate. The Panel’s decision was therefore lawful and the appeal failed.

The judgment does not state the citation of any lower decision. The appeal was brought directly to the High Court under section 29 of the Nursing and Midwifery Council Order 2001 against the Fitness to Practise Panel’s decision dated 26 September 2022.