Oladotun Adebayo v The Nursing and Midwifery Council

An appeal from a fitness to practise decision is neither confined to law nor a rehearing. The court may exercise its own judgment on the evidence, but must not interfere unless the panel’s decision was wrong or unjust because of a serious procedural irregularity. Particular deference is required on professional judgment.

A criminal sentence is not necessarily a reliable measure of the seriousness of conduct for regulatory purposes. Dishonesty may justify a finding of impairment and striking off where it is sustained, linked to professional employment, insufficiently remediated, and fundamentally incompatible with continued registration. Repayment, a guilty plea, lack of clinical concerns and subsequent good practice do not necessarily prevent that conclusion.

The appellant appealed under article 38(1) of the Nursing and Midwifery Order 2001 against a Fitness to Practise Committee decision dated 5 August 2024. The Committee found that his fitness to practise was impaired by misconduct and a criminal conviction and imposed a striking-off order, together with an interim suspension order pending appeal.

The misconduct included dishonestly retaining payments for 64 unworked shifts, failing to disclose his previous dismissal and related investigation when applying for nursing employment, failing to disclose a criminal charge promptly, and making a further dishonest representation during the employer’s investigation. The appellant challenged both impairment and sanction, contending that the Committee had failed to give sufficient weight to repayment, his guilty plea, remorse, insight, subsequent employment and the absence of clinical concerns.

1. The appeal was dismissed. Under article 38(3) of the Nursing and Midwifery Order 2001 and CPR 52.21(3), the court considered whether the Committee’s decision was wrong or unjust because of a serious procedural or other irregularity. Applying the approach in Cheatle v General Medical Council [2009] EWHC 645 (Admin), the appeal was not confined to a point of law and was not a de novo hearing. The court could exercise primary judgment on the documentary evidence, but the intensity of review had to be calibrated to the issue. Professional judgments attracted distinctly secondary judgment.

2. The appellant’s attempts to advance explanations inconsistent with his unequivocal admissions before the Committee could not be given weight. Adopting inconsistent positions before different tribunals may amount to an abuse of process: Harrold v Nursing and Midwifery Council [2016] EWHC 2555.

3. The court was not entitled to go behind the facts of the conviction in the regulatory proceedings: Kirk v Royal College of Veterinary Surgeons [2004] UKPC 4. The fact that the sentence was suspended did not materially reduce the regulatory seriousness of dishonestly retaining NHS funds. The seriousness of criminal conduct as measured by sentence is not necessarily a reliable guide to its gravity for maintaining confidence in a profession: Low v General Osteopathic Council [2007] EWHC 2839 (Admin).

4. The Committee had properly undertaken a forward-looking assessment of impairment. It considered remediation, insight, remorse, repayment, the guilty plea, references, training, subsequent openness and the absence of clinical risk. It was nevertheless entitled to find that the dishonesty was serious and sustained, that insight was incomplete, and that public confidence and professional standards required a finding of impairment.

5. Due deference was required, particularly on impairment, because the Committee possessed specialist professional expertise: Gabarda v Nursing and Midwifery Council [2015] EWHC 4039 (Admin). The Committee’s decision on impairment was not wrong.

6. A conditions of practice order or suspension would not adequately mark the seriousness of the misconduct or protect public confidence. The dishonesty involved sustained deception, personal financial gain, breach of the professional duty of candour and an attempt to obtain nursing employment by concealment. It was therefore open to the Committee to conclude that the conduct was fundamentally incompatible with continued registration and that striking off was the only sufficient sanction. The absence of an earlier fitness to practise history was not materially determinative: PSA v Nursing and Midwifery Council and Judge [2017] EWHC 817 (Admin).

7. The respondent was awarded costs on the standard basis, summarily assessed at £8,972.43. The general costs-shifting rule applied to this appeal, subject to no special circumstances: Wingate and Evans v Solicitors Regulation Authority and others [2018] 1 WLR 3969. Time for payment was extended to 28 days.

• High Court (Administrative Court): appeal under article 38(1) of the Nursing and Midwifery Order 2001 dismissed. The Fitness to Practise Committee’s striking-off order was upheld, and costs were awarded to the respondent.