Mary Cascioli v Nursing and Midwifery Council

An appeal under the Nursing and Midwifery Order 2001 is appellate rather than supervisory. The court may substitute its own decision, but should respect the specialist tribunal’s primary fact-finding and professional judgment unless the decision was wrong or unjust.

A tribunal may take a rejected defence into account when assessing insight and sanction, provided it applies the safeguards identified in Sawati and fairly distinguishes mere denial from additional deception, blame or lack of insight. Evidence concerning uncharged matters may be used at impairment or sanction where it is relevant and fair. A dishonest breach of a regulatory conditions-of-practice order may justify striking off where the conduct is sustained, deliberate, insufficiently remediated and creates a potential risk to patients or public confidence.

The appellant, a registered nurse, appealed under Articles 29(9) and 38(1) of the Nursing and Midwifery Order 2001 against findings and orders made by a Fitness to Practise Committee panel.

The panel found that she had dishonestly breached a conditions-of-practice order by failing to disclose it properly in applications and interviews for nursing employment. It found misconduct, current impairment and imposed a striking-off order.

The appeal challenged the panel’s factual findings, its treatment of the appellant’s rejected defence and medical evidence, its use of uncharged material, its assessment of impairment and public confidence, and the proportionality of the sanction.

1. Appeal dismissed. The court applied the appellate jurisdiction under Article 38(3) of the Nursing and Midwifery Order 2001 and CPR 52.21(3). It could substitute its own decision, but findings of fact and professional judgment were entitled to appropriate respect. The panel’s decision had to be read fairly and as a whole.
2. The panel was entitled to find that the conditions-of-practice order required disclosure in each application. Disclosure during or at the end of an interview did not necessarily amount to immediate disclosure at the time of application. The evidence supported findings that the appellant had delayed disclosure to improve her prospects of obtaining an interview and had acted dishonestly.
3. The panel’s use of the interview matrix, witness evidence and expert evidence was rational. An error concerning one interview did not undermine the remaining evidence or the charges, which required proof on only one or more relevant occasions.
4. The panel properly applied the principles in Sawati when considering the appellant’s rejected defence at impairment and sanction. Dishonesty was a primary allegation, not a charging trap. The appellant had denied both dishonesty and the underlying breaches, and there was additional evidence of inadequate insight, insufficient remediation and evasiveness. It was therefore fair to take the rejected defence into account.
5. Material concerning the appellant’s later application form was admissible at impairment and sanction. Although not separately charged, it was relevant to current insight, remediation and risk of repetition, and the appellant had introduced it as evidence of improvement and had been questioned about it.
6. The panel was entitled to find potential patient risk, impaired fitness to practise and serious, sustained and deliberate dishonesty. In light of the repeated regulatory breaches, lack of insight, inadequate remediation and public-protection objectives, striking off was appropriate and proportionate.

The judgment does not state the citation of any decision under appeal. The appeal was brought directly against decisions of a Nursing and Midwifery Council Fitness to Practise Committee panel dated 31 July 2023 and 4 August 2023.