Gregory Evboren v The Nursing and Midwifery Council

A statutory appeal by way of rehearing may succeed where the regulatory tribunal’s decision was wrong or unjust. In challenges to factual or evaluative findings, the appellate court must distinguish errors falling within the ordinary meaning of wrong from disagreements requiring deference.

For findings based on credibility, the court must respect the tribunal’s professional expertise, its advantage in hearing live evidence, and the generous ambit of reasonable disagreement. The civil standard remains the balance of probabilities. Serious allegations may require stronger evidence because they are inherently less probable, but they do not attract a higher standard of proof.

The appellant, a registered nurse, appealed under article 38 of the Nursing and Midwifery Order 2001 against a Fitness to Practise Panel’s decision to erase him from the register. The Panel found that he had engaged in sexual misconduct with two vulnerable inpatients, although it rejected several allegations.

The appeal challenged the nature of the rehearing, the burden and standard of proof, the Panel’s assessment of credibility, the treatment of hearsay and possible collusion, cross-admissibility of the complainants’ evidence, and the adequacy of the reasons.

1. Appeal dismissed. The statutory appeal was by way of rehearing, but the appellant had to establish that the Panel’s decision was wrong or unjust. The court could reanalyse the evidence and substitute its own decision where the statutory test was met.
2. The meaning of wrong was flexible. It included inadequate reasons, irrationality, findings which no reasonable Panel could make, reliance on irrelevant material, failure to consider relevant material, and findings based on no evidence. A broader challenge based on weight of evidence or credibility required the appellant to overcome three overlapping thresholds: appropriate deference to professional expertise, deference arising from the tribunal’s advantage in hearing live evidence, and the generous ambit of reasonable disagreement.
3. The burden of proof remained on the NMC and the standard was the balance of probabilities. The seriousness of an allegation did not raise the standard, although inherent probability or improbability was relevant when weighing the evidence.
4. The Panel’s reasons, read as a whole, enabled the appellant to understand why he had lost and permitted effective appellate review. A tribunal need not address every submission expressly where its reasoning can readily be inferred from the decision.
5. The Panel had been wrong to place no weight on the hearsay evidence suggesting that one complainant had fabricated the allegations. That evidence had some, although limited, weight. The error did not make the overall findings wrong, given the absence of cross-examination, the Panel’s assessment of the live evidence, and the other evidence supporting the findings.
6. The Panel had not materially misapplied cross-admissibility. It was entitled first to assess each complainant’s credibility and then to consider whether consistent evidence of similar conduct provided additional support. Its reasoning concerning collusion and the complainants’ mental health could have been fuller, but was not irrational or unjust.
7. The Panel was entitled to accept parts of the complainants’ evidence while rejecting other allegations. The differing outcomes did not demonstrate irrationality or an impermissible reversal of the burden of proof. None of the grounds established that the decision was wrong or unjust.

The judgment describes an appeal under article 38 of the Nursing and Midwifery Order 2001 from the Fitness to Practise Panel’s decision. The Administrative Court dismissed the appeal.