XY v Nursing and Midwifery Council

An appeal from a fitness to practise decision is neither confined to a point of law nor a full rehearing. The court may exercise its own judgment on whether the evidence supports factual findings, but will not interfere unless the decision was wrong. It gives particular respect to professional judgment concerning standards and risks to patients.

A regulator may act where a registrant’s fitness to practise is impaired by reason of health, even when symptoms are in remission, if the evidence establishes a material risk of relapse. A disciplinary panel may proceed in a registrant’s absence where the registrant has deliberately chosen not to participate and there is no good reason to adjourn.

The appellant, a nurse, appealed under Article 38(1) of the Nursing and Midwifery Order 2001 against a Fitness to Practise Committee decision finding her fitness to practise impaired by reason of acute and transient psychotic disorder and imposing a 12-month suspension.

She challenged the diagnosis, the assessment of future relapse risk, the admissibility and reliability of evidence, procedural fairness, alleged human-rights breaches, and the proportionality of the sanction. The central issues were whether the Committee had acted within its statutory jurisdiction and whether its findings and procedure were legally or factually wrong.

1. Appellate approach. Applying the approach in Cheatle v General Medical Council [2009] EWHC 645 (Admin), the appeal was not confined to law and was not a de novo hearing. The court could exercise its own primary judgment on whether the evidence supported factual findings, but would interfere only if the decision was wrong. Particular respect was due to specialist professional judgment concerning standards of practice and risks to patients.

2. Statutory jurisdiction and health. Article 22(1)(a)(iv) of the Nursing and Midwifery Order 2001 expressly permits consideration of whether fitness to practise is impaired by physical or mental health. The charge properly separated the existence of a health condition from its effect on fitness to practise. The statutory power was capable of applying where symptoms were currently in remission but the registrant was liable to relapse.

3. Evidence and impairment. The Committee was entitled to accept the consultant psychiatrist’s diagnosis notwithstanding earlier diagnostic classifications. The evidence supported a finding of current impairment because of the appellant’s history of episodes, lack of insight, refusal of treatment, occupational stressors, and consequent risk of relapse affecting patients.

4. Procedural fairness. The Committee was entitled to proceed in the appellant’s absence on both occasions when she had clearly communicated that she did not wish to continue participating. The principle in GMC v Adeogba [2016] EWCA Civ 162, [2016] 1 WLR 3867 supported that approach. Alleged errors concerning the diagnostic code, evidence, data disclosure, representation, bias, and human-rights complaints did not materially undermine the decision.

5. Sanction and outcome. The 12-month suspension accorded with the NMC’s guidance and was calibrated to allow reflection, development of insight, and management of the health condition. The appeal was dismissed.

High Court (Administrative Court): The appeal under Article 38(1) of the Nursing and Midwifery Order 2001 against the Fitness to Practise Committee’s decision of 13 July 2023 was dismissed.