Ruscillo v Council for the Regulation of Health Care Profesionals& Anor

Section 29 of the National Health Service Reform and Health Care Professions Act 2002 permits the Council to refer an acquittal in professional disciplinary proceedings to the High Court, provided the statutory conditions are met. A final decision not to take disciplinary action includes a decision that misconduct was not proved.

A reference under section 29 is an appeal governed by CPR Part 52. It concerns the final decision on disciplinary sanction, not a free-standing challenge to findings which leaves the sanction untouched. A sanction is unduly lenient only if a tribunal, considering the material facts and the protective purpose of discipline, could not reasonably have imposed it. The High Court should give weight to a tribunal's expertise where it considered all relevant evidence and factors.

These conjoined appeals concerned the new supervisory jurisdiction created by section 29 of the National Health Service Reform and Health Care Professions Act 2002.

Dr Ruscillo had been acquitted by the General Medical Council's Professional Conduct Committee of serious professional misconduct arising from a relationship with a patient. Leveson J held that the Council could refer that acquittal to the High Court. Dr Ruscillo appealed.

Mr Truscott, a paediatric nurse, admitted misconduct after accessing sexually explicit and offensive internet sites while on duty. The Nursing and Midwifery Council imposed a five-year caution. Collins J dismissed the Council's section 29 appeal against that sanction, and the Council appealed.

The central issues were whether section 29 reaches an acquittal, the appellate test governing a reference, and the permissible use of procedural shortcomings or fresh evidence.

1. Both appeals were dismissed. The court, in a single judgment, held that the Council could refer Dr Ruscillo's acquittal to the High Court. A final decision not to take disciplinary measures under section 29(2)(a) includes a tribunal's conclusion that misconduct was not established. The contrary construction would frustrate the protective purpose of section 29 and produce anomalies across the different statutory disciplinary schemes.

2. The reference power concerns the final decision on sanction. Under section 29(4)(a), an imposed sanction may be unduly lenient because the findings of misconduct are inadequate, or because the sanction does not adequately reflect findings properly made, or both. It does not authorise a free-standing appeal against findings where the Council accepts the sanction. A failure to impose any sanction under section 29(4)(b) will implicitly require the Council to regard that outcome as unduly lenient.

3. A section 29 reference is an appeal for CPR Part 52 purposes. The High Court must dismiss it if the decision on sanction was correct. If the decision was wrong, it may quash and substitute a decision or remit the matter. A serious procedural irregularity may justify remittal where the court cannot determine whether the sanction was appropriate.

4. The appropriate test is whether, having regard to the material facts and the protective objects of disciplinary proceedings, the sanction was one a disciplinary tribunal could reasonably impose. The objects include public safety and the reputation of the profession. The criminal-sentencing concept of double jeopardy is not apposite in the same way, although reopening a concluded case is inherently burdensome and the statutory power should be used carefully.

5. The court gave guidance, not necessary to decide the appeals, on under-prosecution and fresh evidence. A disciplinary tribunal should take a proactive role in ensuring proper presentation of the case. Where relevant evidence was not before it, the Council should first investigate with the regulator. The principles in Ladd v Marshall [1954] 1 WLR 1489 do not govern admission of fresh evidence on a section 29 reference; the controlling question is whether its admission is truly in the public interest.

6. In Mr Truscott's case, the caution was lenient but not shown to be unduly lenient. The Committee had considered the relevant issue of his suitability to nurse vulnerable adolescents, no material error of fact or procedure was established, and it was entitled to conclude that his conduct did not demonstrate unfitness to practise. Its specialist assessment therefore merited deference.

• Court of Appeal (Civil Division): The court dismissed Dr Ruscillo's appeal from Leveson J's ruling of 29 March 2004 and the Council's appeal from Collins J's order of 31 March 2004. It refused Dr Ruscillo permission for any further appeal.
• Administrative Court (High Court): Leveson J held that section 29 permitted a reference against Dr Ruscillo's acquittal. Collins J dismissed the Council's appeal against the caution imposed on Mr Truscott.