Written by Daniel Langley, Solicitor
Wisniewska v Nursing and Midwifery Council  EWHC 2672 (Admin), Hayden J
This case provides a rare example of the High Court quashing a decision to strike-off a nurse following a finding of dishonesty. The court concluded that the NMC's Conduct and Competence Committee's (the Committee) reasoning was illogical and in the alternative imposed a sanction of 12 months suspension from the register.
At a hearing before the Committee in 2014, W accepted that, although she had told her employer that she was too unwell to attend work, she had in fact worked elsewhere on those dates. The Committee suspended W for six months.
In April 2015 W returned to practice having served her suspension. She did not declare her earlier suspension to a new employer when required to do. The matter was referred to the NMC, and W admitted that she had dishonestly failed to declare the earlier suspension. In light of this failure, the Committee concluded in April 2016 that W should be erased from the register.
W advanced three grounds of appeal:
"Ground One: The Committee's decision to impose a striking off order was wrong in that it failed properly to evaluate the mitigating features of the case when considering a suspension order.
Ground Two: The Committee was wrong to conclude the Appellant posed a risk of harm to patients when determining the issue of current impairment.
Ground Three: The Committee's decision on impairment was wrong insofar as it made irrational findings in relation to insight/remediation."
The Court found that where the only realistic options on sanction are either striking off or suspension, it is critical that the available mitigation is fully weighed when evaluating the proportionality of a suspension. In the present case, the Court held that it was impossible to evaluate what weight the Committee gave to the mitigating factors advanced in W's favour (namely full admissions, insight, remorse, remediation, a history of good clinical practice, the effect of stress contributing to the misconduct, and other relevant personal circumstances).
On the second ground, the Court found that the Committee's written reasoning did not identify evidence that W had or would put patients at risk of unwarranted harm. In addition, there was no evidence that W had ever put any patient at risk throughout her twenty year career or would ever do so.
Moreover, the Court held that the Committee's conclusion that W did not understand how the public might view her actions was not supported (and was in fact contradicted) by the available evidence.
Overall, the court was satisfied that the illogicalities in the Committee's reasoning undermined the reliability of its findings and rendered the decision on sanction unreliable.
In light of these findings, the Court quashed the striking off order and imposed a 12 month suspension on W.
Whilst the Court accepted that a nurse found to have acted dishonestly will always be at risk of being struck off, it is not a foregone conclusion. Committees must tread a careful line, given that the Professional Standards Authority will be concerned about sanctions that do not sufficiently protect the public whilst at the same time acknowledging that there will be cases in which removal is not an appropriate sanction. The principal function of sanction is not punitive but to protect the public interest. Offences of dishonesty will almost always attract significant sanction but it must be remembered that the public interest may include the safe return of a nurse to practise. The case is an important reminder to disciplinary tribunals of the need to weigh and evaluate fully all available evidence and provide clear and consistent reasons for their decisions.