Karen Brown v The Nursing and Midwifery Council

An appellate court reviewing a professional disciplinary decision applies the ordinary appeal test: the decision must be wrong, or unjust because of a serious procedural or other irregularity. It should be cautious when reviewing primary factual findings and evaluative regulatory judgments, while drawing its own inferences where appropriate. Alleged incompetence in representation requires a strict threshold and must also have caused an unjust hearing. A disciplinary tribunal need not address every submission or item of evidence expressly if its reasoning makes clear that the material issues were considered. Evidence from a person involved in an earlier investigation is not thereby inadmissible, although reliance on the earlier investigation’s findings may be improper.

The appellant, a community psychiatric nurse, appealed against a Fitness to Practise Committee decision which upheld specified allegations of record-keeping failures, failure to follow an instruction, and professional-boundary breaches. The Committee imposed a 12-month conditions of practice order.

Eight grounds alleged inadequate particularisation, improper admission of evidence, incompetent representation, inadequate reasons, contradictory findings, misuse of mitigation, and unworkable conditions. The appeal concerned whether the Committee’s decision was wrong or unjust because of a serious procedural or other irregularity.

1. Appeal standard. The appeal was governed by CPR Part 52. The court adopted the approach in General Medical Council v Jagivan, including caution in disturbing primary factual findings, appropriate respect for regulatory expertise, and recognition that inadequate reasons may constitute a serious procedural irregularity.
2. Particularisation. The two-stage test in R (Johnson and Maggs) v Professional Conduct Committee of the Nursing and Midwifery Council was satisfied. The charges gave the appellant reasonable clarity about the case to meet and sufficient information to prepare her defence. Further particulars were unnecessary.
3. Evidence and representation. Enemuwe did not establish a rule excluding a witness involved in an earlier investigation. Its concern was reliance on the earlier investigator’s findings rather than independent evidence. The witness here gave evidence of matters within her knowledge and the appellant had ample opportunity to challenge it. The strict test for alleged incompetent representation in Nicholas Pillai was not met: the advocate’s approach was within the range reasonably open to him and the appellant received a fair opportunity to present her case.
4. Reasons and staged decision-making. The Committee was entitled to consider evidence according to its relevance at each stage. Failure to repeat a piece of evidence at every stage did not show that it had been ignored. Applying Shabir, the reasons sufficiently explained why the appellant lost and permitted appellate review. The Committee addressed the charges, context, remediation, impairment and sanction coherently.
5. Outcome. The remaining grounds concerning contradiction, mitigation and the conditions of practice order were misconceived or unsupported. The conditions addressed identified deficiencies and could be reviewed if practical difficulties arose. The appeal was dismissed.

• Fitness to Practise Committee: upheld specified charges and imposed a 12-month conditions of practice order.
• High Court (Administrative Court): dismissed the appeal under Article 38 of the Nursing and Midwifery Order 2001.