Council for the Regulation of Healthcare Professionals v Nursing and Midwifery Council

An appeal under section 29 of the National Health Service Reform and Health Care Professions Act 2002 succeeds only where the disciplinary decision was unduly lenient and intervention is desirable for public protection. Undue leniency means that the penalty falls outside the range of penalties which the disciplinary committee, applying its mind to all relevant factors, could reasonably consider appropriate. The court must give proper weight to “unduly”; a penalty may be lenient without being unduly lenient. A section 29 appeal is determined on its merits, rather than by the restricted approach applicable to an ordinary appeal. Where the appeal concerns penalty alone, the appellant is generally confined to the material placed before the disciplinary committee.

The Council for the Regulation of Healthcare Professionals referred to the Administrative Court a disciplinary decision of the Nursing and Midwifery Council’s Professional Conduct Committee under section 29 of the National Health Service Reform and Health Care Professions Act 2002. The Committee had found that Stephen Truscott, a paediatric nurse, committed misconduct by accessing sexually explicit and offensive internet material on a hospital computer while on duty, but imposed a five-year caution.

The Council contended that the penalty was unduly lenient, relying on the nature and extent of the material, possible access to images of young people, poor insight, and previous workplace misconduct. The central issue was whether the caution fell outside the range of penalties reasonably open to the Committee and whether intervention was desirable for the protection of the public.

1. Jurisdiction and scope. Section 29 confers a wide power to challenge disciplinary measures, decisions not to impose measures, and acquittals. The power must be exercised carefully and sparingly. The person who was the subject of the disciplinary decision should be joined as a respondent in every section 29 appeal.
2. Nature of the appeal. The court determines whether the statutory conditions in section 29(4) are satisfied. The issue is not confined to the restricted approach applicable under the ordinary civil appeal rules. The burden rests on the Council to establish undue leniency. Where the appeal concerns penalty alone, the Council may rely only on material before the Professional Conduct Committee. Any challenge based on an allegedly lenient finding must identify the finding and the omitted or aggravating material.
3. Applicable test. Applying the approach in Lomas v Parle [2004] 1 All E.R. 1173 and AG’s Reference No.4 of 1989 (1990) 90 CAR 366, the question is whether the penalty fell outside the range of penalties which the Committee, applying its mind to all relevant factors, could reasonably consider appropriate. If undue leniency is established, the public-protection requirement will ordinarily follow, but both statutory requirements must be addressed.
4. The Committee was entitled to regard the conduct as serious misconduct involving abuse of trust, while also taking account of the absence of direct patient harm, favourable testimonials, dismissal, the police decision not to prosecute, and the possibility that some material had appeared through cascading. The evidence did not establish deliberate access to child pornography. The caution was lenient, but it remained within the range reasonably open to the Committee. Undue leniency was therefore not established.
5. Professional committees should make findings on matters put in issue in mitigation or aggravation of penalty. The appeal was dismissed.

This was a section 29 appeal to the Administrative Court from the Nursing and Midwifery Council Professional Conduct Committee’s disciplinary decision. The Committee imposed a five-year caution after finding misconduct proved. The Administrative Court dismissed the Council’s appeal.