High Court uphold appeal in PSA v NMC & & Anor

The High Court has upheld an appeal by the PSA against a determination by a NMC tribunal as unduly lenient.

Professional Standards Authority for Health and Social Care v Nursing and Midwifery Council & Anor [2024] EWHC 691 (Admin) is an appeal from a decision (“the Decision”) of a panel of the Fitness to Practice Committee (“the Panel”) of the Nursing and Midwifery Council (“the NMC”) dated 9 March 2023. The Panel decided that Reverend Elizabeth Ogbuanya Offier (“the Registrant”) should be suspended from the register for a period of six months for impairment of her fitness to practise arising from misconduct.

The Panel found that the Registrant had dishonestly failed to disclose information to a future employer about the existence of two previous employers and that she was subject to investigation by that previous employer. The Panel also found that the Registrant had dishonestly failed to disclose information to her employer that conditions had been imposed on her by the NMC. The Panel also found that the Registrant had worked one shift for the employer in breach of the condition that she should be supervised by a registered nurse.

The appeal is brought on the grounds that the penalty imposed by the Panel was not sufficient for the protection of the public. The Court was asked to quash the Decision and substitute a striking-off order.

The NMC conceded the appeal.

The Authority appealed on three grounds:

Ground 1: Having made the findings of facts and impairment, the Panel was wrong to conclude, at the sanction stage, that a suspension order was a sufficiently serious sanction to protect the public. The only order reasonably open to the Panel was to strike the Registrant off the register.

Ground 2: Further or alternatively, the Panel erred in its findings in a number of ways and, had the Panel not made those errors, individually or cumulatively, the only sanction reasonably open to it would have been to strike the Registrant off the register.

Ground 3: Alternatively, the Decision was unjust because of a serious procedural or other irregularity in that the Panel failed to give adequate reasons for its conclusion that a striking-off order would be disproportionate.
The NMC agrees with the Grounds of Appeal, save that it takes issue with two of the arguments made at Ground 2 as to specific errors made by the Panel.

Under appeal ground 1, the PSA, amongst other things, argued that “the Panel wrongly concluded that none of the six types of dishonesty set out in the Sanctions Guidance were applicable, when it should have found that at least two were made out on the facts.”

Mr Justice Sheldon agreed, saying:

“I agree that the Panel fell into error by finding that none of the six forms of dishonesty that are most likely to call into question whether a nurse should be allowed to remain on the register were met. It is not possible to understand why the Panel reached this conclusion, as no reasoning is provided. Nevertheless, in my judgment, it was simply not open to the Panel to find that none of the six forms of dishonesty were present in the Registrant’s case.”

Sheldon J partly upheld ground 2 saying:

“In my judgment, therefore, a number of the Authority’s arguments at Ground 2 are correct. If the Panel had not made these errors, it might have reached a different outcome on sanction.”

The PSA asked the court to quash the Decision and substitute a striking-off order, however Sheldon J disagreed, saying:

“I do not consider that striking the Registrant off the register was the only option reasonably available to the Panel, even if the Panel had not made the errors that I have identified above. In the circumstances, I do not substitute the sanction of striking off for that of suspension.

“I also cannot say that the six month suspension ordered by the Panel was the only option that was reasonably available either, so that remittal would serve no useful purpose. It seems to me that both sanctions — suspension or striking off — would have been available to the Panel had it not made the various errors that I have identified above.

“Accordingly, I will allow the appeal but remit the decision so that the question of sanction can be looked at in light of the findings that the Panel made, but also the findings that the Panel should have made. I shall consider further submissions from the parties as to the appropriate form of the order for remittal and on any other consequential matter.”

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