The Administrative Court ruled that the Conduct and Competence Committee of the Nursing and Midwifery Council (the Committee) was not entitled to take account of factual conclusions it had drawn on the basis of its own investigations when considering what sanction to impose.

S was a registered nurse who was employed as a clinic manager by an NHS authority. Between 27 November 2006 and 14 March 2007, S claimed to be sick and unable to work. It later emerged that on three consecutive nights in December 2006, he worked paid shifts as a bank nurse.

A payroll team manager at the NHS authority which employed S produced a witness statement confirming that S had worked the shifts during December 2006. Her statement exhibited a printout from the Bank Staff Management System.

S was charged with acting dishonesty in respect of the three shifts he had worked during December 2006. He was also charged with a failure to adhere to his employer's sickness policy. Those charges were found to be proved and the Committee decided to suspend S for a year.

When deciding on what sanction to impose, the Committee considered the range of possible sanctions in the 'Indicative Sanctions Guidance for Panels of the Conduct and Competence Committee' (the Guidance) adopted by the Nursing and Midwifery Council.

The Guidance provides for three available sanctions, namely (in order of severity), a caution; suspension; or striking off. It also lists factors which should be taken into account when deciding on which sanction to impose, including whether it had been an 'isolated incident which was not deliberate' and whether there had been any repetition of the behaviour since the incident.

In its decision, the Committee noted that in the information produced by the payroll team manager (ie the printout from the Bank Staff Management System exhibited to her statement) there was evidence that S had worked an additional four bank shifts during January 2007 (in addition to the three worked in December 2006). On this basis it concluded that there had been a 'repetition of the misconduct' which had occurred during December 2006.

However, those four alleged shifts in January 2007 were not addressed in the body of the payroll manager's witness statement and the charges against S did not include them. The judge concluded that the January 2007 shifts had been spotted when a 'sharp-eyed member of the Committee had studied (the exhibit)'.

The court noted that 'the Committee seem to have made an assumption, which frankly may or may not be correct', that (the exhibit) evidences four further occasions upon which (S) worked as a bank nurse whilst … claiming to be sick'.

The court found that the Committee had taken this apparent repetition of the misconduct when making its decision with respect to sanction, and that by doing its own detective work and not discussing the matter with the case presenter or their legal assessor, they had made a 'serious error'. The court found that the Committee had not been entitled to take the behaviour in question into account and accordingly referred the matter back to the Committee for reconsideration. It directed that the Committee could not take into account the four further alleged shifts in January 2007 unless and until those occasions had been formally and fairly put to S in due time before the hearing so that he had a proper opportunity to deal with them. If he denied them, the allegation that he had worked those shifts would need to be fully and properly proved by evidence.