Factual and Procedural Background
The Appellant is appealing a decision by a disciplinary panel of a professional regulatory body dated 3 December 2010, which struck her off the professional registers for midwifery and nursing, imposed a prohibition on applying for restoration for five years, and issued an interim suspension order for 18 months. The appeal is brought under a statutory provision governing such appeals.
The Appellant was charged with dishonesty related to working in a non-supernumerary role on seven occasions during a period of supervised practice and separately with working in a non-supernumerary role on one further occasion. The dishonesty charge was denied, but the other charges were admitted. The panel found the dishonesty proved and that the Appellant’s fitness to practice was impaired, resulting in striking off the register.
The appeal challenges the finding of dishonesty, the consequent findings of unfitness to practice, and the sanction imposed. The Appellant alleges significant procedural irregularity and errors of law, contending that the sanction was disproportionate regardless of the findings.
The background facts reveal the Appellant’s long career as a nurse and midwife, her employment within a hospital trust, and her supervision by a supervisor of midwives (SOM) appointed by a local supervisory authority (LSA). Following concerns about her practice, the Appellant was placed on a newly introduced supervised practice regime that required her to work only in a supernumerary capacity and prohibited agency work during this period.
The Appellant undertook agency shifts outside her employing trust during the supervised practice period, believing that the prohibition on agency work applied only within her employing trust. This misunderstanding was accepted by supervisory staff during an initial investigation, and the Appellant was allowed to continue supervised practice.
Subsequently, further incidents of unsupervised working were discovered, including working unsupervised within the trust. Following disciplinary proceedings, the Appellant was dismissed from employment and reported to the regulatory body. The regulatory investigation widened to include allegations of dishonesty concerning the external agency shifts worked during supervised practice.
The disciplinary hearing was conducted in the Appellant’s absence and without legal representation. The charges included working in breach of instructions and dishonesty. The panel found the dishonesty proved and imposed striking off and suspension sanctions.
Legal Issues Presented
- Whether the disciplinary panel erred in law and procedurally by proceeding in the Appellant’s absence and without representation.
- Whether the allegation of dishonesty was properly particularised and whether the panel’s findings on dishonesty were legally correct.
- Whether the panel applied the correct legal test for dishonesty, including proper consideration of the Appellant’s state of mind and defence.
- Whether the sanction of striking off was proportionate in all the circumstances.
Arguments of the Parties
Appellant's Arguments
- The panel wrongly proceeded in the Appellant’s absence and without legal representation, based on incorrect assumptions about her informed consent to non-attendance.
- The charge of dishonesty was not adequately particularised, lacking clear explanation of the nature of the alleged dishonesty, the Appellant’s state of mind, and the evidence relied upon.
- The panel misapplied the legal test for dishonesty by failing to properly identify the dishonest conduct alleged, failing to consider the Appellant’s defence, and relying on matters outside the charge.
- The sanction of striking off was disproportionate, especially given the quashing of the dishonesty finding which was the foundation for the sanction.
Respondent's Arguments
The opinion does not contain a detailed account of the Respondent's legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Ghosh [1982] 1 QB 1053, CA |
Legal test for dishonesty involving a two-stage inquiry: (1) whether conduct is dishonest by ordinary standards; (2) whether the defendant realised that by those standards the conduct was dishonest. |
The court applied the Ghosh test to analyse whether the panel had correctly directed itself and applied the law on dishonesty. It found the panel’s direction deficient and the application flawed, particularly in failing to identify the precise dishonest conduct and in not properly considering the Appellant’s state of mind and defence. |
Court's Reasoning and Analysis
The court undertook a detailed examination of the procedural and substantive aspects of the disciplinary proceedings. It identified significant procedural irregularities, including the panel proceeding in the Appellant’s absence and without legal representation based on incorrect assumptions about informed consent and the nature of the Appellant’s non-attendance.
The court found that the allegation of dishonesty was inadequately particularised. The charge failed to specify clearly the dishonest conduct alleged, the Appellant’s state of mind, and the evidence supporting the dishonesty claim. The panel’s findings extended beyond the charge to include misrepresentations not formally alleged, which was procedurally unfair.
The legal direction given to the panel on dishonesty was incomplete and did not follow the established Ghosh test fully. The panel failed to apply the test in a structured manner, neglecting to identify the alleged dishonest acts precisely, assess whether those acts were dishonest by ordinary standards, and determine whether the Appellant was aware of that dishonesty.
The court also noted that the panel did not adequately consider the Appellant’s defence, which included a genuine misunderstanding about the scope of the prohibition on agency work during supervised practice. This defence had previously been accepted by supervisory officials during an earlier investigation.
Given these errors, the court held that the panel’s decision was unjust and legally flawed. It concluded that the findings of dishonesty and consequent findings of unfitness and sanction could not stand.
Holding and Implications
The court's final decision was to ALLOW the appeal, quash the disciplinary panel’s decision dated 3 December 2010, and remit the case (except for the dishonesty allegation) back to the disciplinary panel for reconsideration.
The court directed that the remission should proceed on the basis that there was no dishonesty, effectively removing the dishonesty allegation from consideration. The interim suspension order was extended for six months or until the panel’s reconsideration, whichever was sooner.
The direct effect is that the Appellant’s strike-off and prohibition from restoration are set aside pending reconsideration of the remaining allegations. No new precedent was established beyond clarifying the procedural and legal requirements for disciplinary proceedings involving allegations of dishonesty and the necessity of proper particularisation and informed consent to non-attendance.