Jatta v Nursing & Midwifery Council

Where disciplinary rules prescribe how notice of a hearing must be served, valid service depends on compliance with those rules. A regulator need not take an additional step, such as sending an email alert, merely because it knows that the prescribed address may no longer bring the notice to the registrant’s attention.

Once the disciplinary committee has evidence that all reasonable efforts were made, in accordance with the rules, to serve the notice, and is satisfied that it was duly served, it may proceed in the registrant’s absence. It retains a discretion to adjourn. A registrant’s duty to maintain a current registered address is material to both service and the lawful exercise of that discretion.

The Nursing and Midwifery Council’s Conduct and Competence Committee struck Mr Jatta off the register following a disciplinary hearing held in his absence. The formal notice had been sent to his registered address, although the Council knew that he had left that address and possessed an email address through which he could be contacted.

Mr Jatta appealed successfully to the Administrative Court. Beatson J held in [2009] EWHC 556 (Admin) that the failure to send a short email alert vitiated the proceedings and remitted the matter for a new hearing.

The Council appealed. The central issue was whether the statutory requirement to make all reasonable efforts, in accordance with the applicable rules, required an email alert in addition to service by the prescribed method.

1. Appeal allowed. Lloyd LJ, with whom Sir Simon Tuckey and Maurice Kay LJ agreed, held that the committee had been entitled to proceed in Mr Jatta’s absence. The Administrative Court had erred by adding a service requirement which was absent from the applicable rules.

2. Under Rule 21(2) of the Nursing and Midwifery Council (Fitness to Practice) Rules 2004, the committee first had to require evidence that all reasonable efforts had been made, in accordance with the Rules, to serve notice of the hearing. It then had to be satisfied that the notice had been duly served before deciding whether to proceed. “Duly served” meant served in accordance with the prescribed rules.

3. Rule 34 required service by post, another recorded delivery service, or delivery at a relevant address. It did not provide for service or an alert by email. In the absence of a newly notified address, the Council was bound to send the notice to the registered address. Its knowledge that the address was unlikely to bring the document to Mr Jatta’s attention did not prevent valid service. An email alert might have been desirable, but its omission was not a failure to make an effort required by the Rules.

4. The committee retained a choice between proceeding under Rule 21(2)(b) and adjourning under Rule 21(2)(c). It had considered the communications, received correct legal advice, balanced Mr Jatta’s interests against those of the Council and the public, and carefully exercised its discretion. Its decision to proceed was lawful. Mr Jatta’s indication that he expected to be available in September did not justify assuming that no earlier hearing would be fixed, particularly when he had not supplied a new address after returning to the United Kingdom.

1. Court of Appeal (Civil Division): In [2009] EWCA Civ 824, unanimously allowed the Nursing and Midwifery Council’s appeal. The committee had validly served the notice and lawfully proceeded in Mr Jatta’s absence.

2. Administrative Court: In [2009] EWHC 556 (Admin), Beatson J allowed Mr Jatta’s appeal because the Council had not sent an email alert about the hearing notice. He remitted the disciplinary proceedings for a new hearing.

3. Conduct and Competence Committee: Heard the disciplinary allegation in Mr Jatta’s absence, found his fitness to practise impaired and directed that he be struck off the register.