Saffron Mitchell v Nursing and Midwifery Council

On an appeal against a professional disciplinary sanction, the court may rehear the matter and substitute its own decision, but should respect findings depending on primary fact and the specialist tribunal’s expertise. Intervention in an evaluative sanction decision requires an error of principle or a conclusion outside the range reasonably open to the tribunal.

In dishonesty cases, the nature, duration and professional context of the conduct must be assessed precisely. Not all dishonesty has equal seriousness. Sustained deliberate concealment breaching the professional duty of candour may justify striking off to maintain public confidence, even where clinical competence and direct patient harm are not in issue. An unsupported finding that dishonesty was specifically intended to secure financial gain is an error, but it will not necessarily invalidate the sanction where the overall conclusion remains justified.

The appellant, a registered nurse, appealed under articles 29(9) and 38 of the Nursing and Midwifery Order 2001 against a Fitness to Practise Committee decision finding misconduct, current impairment of fitness to practise and imposing a striking-off order.

The misconduct concerned her failure to disclose an arrest, an ongoing criminal investigation and later criminal charges to a prospective and subsequent employer. She admitted most of the factual charges and dishonesty during her employment, but challenged the proportionality of striking off. She argued that the Committee had double counted aggravating features, wrongly assessed insight and risk, relied on unsupported findings of patient risk and financial gain, and should have imposed a 12-month suspension.

The central issues were whether the Committee’s assessment of sanction was wrong or unjust because of serious procedural irregularity, and whether striking off was proportionate.

1. The appeal was dismissed. Under article 38(3) of the Nursing and Midwifery Order 2001, read with CPR 52.21(3) and Practice Direction 52D, the appeal was by way of rehearing. The court could substitute its own decision, but remained cautious about disturbing primary factual findings and evaluative conclusions of a specialist regulator. The principles in Sastry, Jagjivan, Khan, Fatnani and Raschid, Council for the Regulation of Healthcare Professionals v GMC and Southall, Ghosh and Southall were applied or reaffirmed.

2. The Committee was entitled to treat matters forming the basis of misconduct as aggravating features where they additionally increased its seriousness. The breaches of parts 20 and 23 of the Code could properly aggravate the misconduct. The Committee also had an evidential basis for finding an abuse of trust because the employment involved strict disclosure requirements connected with Government assets.

3. The Committee’s assessment of insight and risk of repetition was reasonably open to it. The absence of further misconduct and later disclosures were recognised, but the Committee was entitled to conclude that the appellant remained focused on her personal difficulties and had not demonstrated sufficient insight into the effect of her dishonesty on patients and public confidence.

4. The Committee had overstated the evidence by finding that the concealment was undertaken for the specific purpose of personal financial gain. The evidence established that personal interests had outweighed the duty of honesty, but did not establish a financial purpose. Ground 3 therefore succeeded to that limited extent.

5. The court nevertheless held that the misconduct was serious and sustained dishonesty involving a prolonged breach of professional candour. The Sanctions Guidance required the Committee to assess the precise nature of dishonesty because not all dishonesty is equally serious. The conduct raised fundamental concerns about professionalism and justified striking off in order to maintain public confidence and professional standards.

6. If patient and public protection alone had been considered, a 12-month suspension would have been sufficient. The wider public-interest objective nevertheless made striking off proportionate. The Committee’s limited error did not undermine its overall conclusion.

• Fitness to Practise Committee: On 17 May 2024, the Committee found misconduct and current impairment of fitness to practise and imposed a striking-off order.
• High Court (Administrative Court): The appeal under articles 29(9) and 38 of the Nursing and Midwifery Order 2001 was dismissed. The striking-off order remained in force.