Ahmet, R (on the application of) v Secretary of State for Health

An authority deciding whether to issue or maintain an alert letter must reach its own judgment on whether a practitioner presents a serious actual or potential risk to patients or staff. It need not conduct a trial or reach final conclusions on disputed allegations, but it must consider the material submitted by both sides. The assessment requires caution where regulatory proceedings remain at an early stage, balanced against the serious professional prejudice caused by an alert letter. A regulatory body’s decision not to impose interim suspension is not conclusive, but is highly relevant and may require great respect. The authority must keep the alert letter under continuing review and cannot disregard that decision.

The claimant, a registered nurse, sought judicial review of decisions by the Regional Director of Public Health refusing to cancel an alert letter issued after his former NHS employer made allegations concerning his professional performance. The first refusal followed the claimant’s written response while the Nursing and Midwifery Council was still assessing the complaint. The second followed a decision by the NMC Preliminary Proceedings Committee that the allegations should be further investigated, but that no interim suspension hearing should be scheduled. The central issues were the correct approach to maintaining an alert letter and the significance of the NMC’s decision.

1. First decision. The Regional Director was required to reach his own judgment, after considering the material from the employer and practitioner, on whether the claimant posed a serious actual or potential risk to patients or staff. He was not required to conduct a trial or reach final conclusions on each disputed allegation. The burden was on the complainant to establish the relevant risk, although caution was generally prudent while the regulatory process remained at an early stage.
2. An alert letter was capable of being gravely prejudicial to a practitioner seeking employment. The decision-maker therefore had to balance public protection against that prejudice. The absence of an immediate NMC interim suspension did not require withdrawal of the alert letter. The first refusal was not even arguably wrong, given the unresolved complaints, an admitted allegation concerning drug administration and the early stage of the NMC’s consideration.
3. Second decision. The NMC Preliminary Proceedings Committee’s decision to investigate the allegations was relevant but did not, by itself, establish the continuing need for an alert letter. The Committee’s decision not to direct an interim suspension hearing was also materially relevant. Although not conclusive, it was entitled to great respect because of the Committee’s experience and the circular’s requirements for monitoring regulatory proceedings and reviewing alert letters.
4. The Regional Director had attached no significance to the absence of an interim suspension hearing. That approach was plainly wrong. The second refusal was quashed and remitted for reconsideration on the basis of all available and up-to-date evidence, including any further material from the Trust, the claimant or his solicitors. The defendant was ordered to pay 80 per cent of the claimant’s costs.

First-instance judicial review. No prior appellate decision is stated in the judgment.