Aston, R (on the application of) v Nursing & Midwifery Council

In an appeal against professional disciplinary sanctions, incompetent representation alone does not justify a rehearing. The appellant must show that the representation fell so far below a reasonable standard that it caused procedural irregularity and rendered the process unfair or the conclusion unsafe. The court assesses the effect of the incompetence in the context of the issues actually tried, the evidence, and the safeguards provided by the tribunal and its legal adviser. Clear credibility-based reasons may be sufficient where the tribunal identifies the witnesses it accepted and the evidence relied upon. Irrelevant or inadmissible evidence does not necessarily make proceedings unfair where its effect is corrected and the appellant had a full opportunity to present his case.

The claimant, a registered nurse, appealed under section 12 of the Nurses, Midwives and Health Visitors Act 1997 against the Professional Conduct Committee’s decision to remove his name from the register. The disciplinary proceedings concerned allegations of inappropriate treatment of patients. The claimant challenged the decision on two grounds: that the non-legally qualified advocate representing him had been seriously incompetent, and that the Committee had failed to give adequate reasons. The central questions were whether the representation caused an unfair process or unsafe conclusion, and whether the Committee’s reasons were legally sufficient.

1. The appeal was dismissed. Under section 12 of the Nurses, Midwives and Health Visitors Act 1997 and Part 52, rule 11 of the Civil Procedure Rules 1998, the claimant had to show that the decision was wrong or unjust because of a serious procedural irregularity.

2. The agreed approach, reflected in R v Bolivar [2003] EWCA Crim 1167 and R v Day [2003] EWCA Crim 1060, was applicable by analogy. Incompetence alone was insufficient. The conduct had to be so unreasonable that no reasonable advocate could have acted in that way, and it had additionally to affect the fairness of the process or the safety of the conclusion. The reference in R v Day to the single safety test following Thakrar [2001] EWCA Crim 1906 did not remove the requirement under rule 11 to establish injustice.

3. The advocate’s conduct was cumulatively far below the standard to which the claimant was entitled. She introduced irrelevant matters, pursued inadmissible or prejudicial evidence, demonstrated a lack of understanding of hearsay and procedure, and failed adequately to present parts of the defence. Nevertheless, the defects did not render the hearing unfair. The claimant gave a full account, the factual issues were clear, and the Committee’s legal adviser corrected the effect of the improper evidence and protected the fairness of the process.

4. The Committee’s reasons were adequate. In a case turning on credibility, it was sufficient to identify the witnesses regarded as reliable, state that their evidence was accepted, and identify the relevant admissions. The approach in Gupta v GMC [2001] UKPC 61; [2002] 1 WLR 1691 supported that conclusion.

5. The claimant was ordered to pay the costs. The court expressed concern about the Royal College of Nursing’s procedures for selecting and ensuring the competence of advocates, but made no order against it.

• Professional Conduct Committee of the Nursing and Midwifery Council: following a four-day hearing, found the charges proved and ordered removal of the claimant’s name from the register.
• High Court (Administrative Court): dismissed the statutory appeal and ordered the claimant to pay the costs.