Council for the Regulation of Health Care Professionals, R (on the application of) v Nursing And Midwifery Council & Anor

A professional regulator’s failure to charge dishonesty where the available material disclosed a serious prima facie case may amount to a serious procedural error. On a reference under section 29 of the National Health Service Reform and Health Care Professionals Act 2002, the court asks whether the disciplinary process and decision had due regard to public safety and the reputation of the profession. A committee may amend defective charges at any stage of the hearing, including after facts have been admitted and found proved, subject to injustice. Where the omission of dishonesty could have led to an unduly lenient finding, remission to a differently constituted committee is appropriate. The discretion not to remit following serious procedural irregularity should be exercised extremely sparingly.

The Council appealed under section 29(4) of the National Health Service Reform and Health Care Professionals Act 2002 against a decision of the Nursing and Midwifery Council’s Professional Conduct Committee concerning a registered nurse. The nurse admitted producing and using documentation purporting to show that she had passed a qualification unit. The charges did not expressly allege dishonesty. After hearing evidence, the Committee declined to consider dishonesty and found no misconduct.

The issues were whether the failure to charge or amend the charges to include dishonesty was a serious procedural irregularity, whether amendment remained possible after the facts had been admitted and proved, and whether the case should be remitted.

1. Appeal allowed. The Committee’s failure to deal with the serious prima facie issue of dishonesty was a serious procedural error. Applying the approach in Council for the Regulation of Health Care Professionals v General Medical Council and Ruscillo [2005] 1 WLR 717, the court considered whether the decision had due regard to public safety and the reputation of the profession. If dishonesty had been charged and resolved against the nurse, the finding of no misconduct would undoubtedly have been unduly lenient.
2. The court applied the reasoning in R(Council for the Regulation of Health Care Professionals) v GMC and Dr Rajeshwar [2005] EWHC 2973 (Admin). By the commencement of the hearing, the evidence was amply sufficient to require dishonesty to be included in the charges.
3. The power in Regulation 14(3) of the Nurses, Midwives and Health Visitors (Professional Conduct) Rules 1993 was not limited to typographical amendments. Its words permitted amendment at any stage during the hearing. The fact that the nurse had admitted the facts and that they had been found proved did not remove that power, although the Committee had to consider whether amendment could be made without injustice.
4. Delay, inconvenience and double jeopardy were relevant considerations, but double jeopardy was inherent in this statutory procedure. Dishonesty involving qualifications potentially affects public safety because of the implications of allowing a professional against whom there is a serious prima facie case of dishonesty to continue in a position of responsibility.
5. The discretion under section 29(8) not to remit after a serious procedural irregularity should be exercised extremely sparingly. The case was remitted to a differently constituted Committee with directions to amend the charges to include dishonesty and consider the matter afresh. The amended charges were to be formulated and served before the Committee reconvened.

• Professional Conduct Committee of the Nursing and Midwifery Council: found the admitted facts proved but, because dishonesty was not expressly charged, made no finding of misconduct.
• High Court (Administrative Court): allowed the Council’s statutory appeal and remitted the case to a differently constituted Committee for fresh consideration with amended charges.