Faulkner v Nursing & Midwifery Council

A professional disciplinary committee may proceed in a registrant’s absence where hearing notice was duly served, but it must exercise that discretion cautiously and fairly. Relevant considerations include whether the absence was voluntary, the seriousness of the allegations, the risks of misunderstanding the reason for absence or reaching a wrong decision, the public interest in expedition, and fairness to the registrant. A reviewing court will not interfere where the committee addressed the relevant factors and its reasons were adequate. A registrant who knows the hearing date but makes no adjournment application and supplies no supporting evidence may be treated as having voluntarily chosen not to attend.

This was a statutory appeal by a registered nurse against decisions of the Competence and Conduct Committee of the Nursing and Midwifery Council. The Committee had previously adjourned proceedings, but proceeded in the appellant’s absence at a hearing on 30 March 2009 after he failed to attend, seek a further adjournment in writing, or provide evidence concerning his health or inability to obtain representation.

The Committee subsequently found the allegations proved, found impairment of fitness to practise, and made a striking-off order. The central issues were whether the decision to proceed in the appellant’s absence was unlawful, whether the Committee had properly considered the consequences of his lack of representation for cross-examination, and whether its reasons were adequate.

1. The appeal was dismissed. The Committee had power under rule 21 of the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 to proceed after being satisfied that notice had been duly served.

2. The discretion to proceed in a practitioner’s absence had to be exercised with caution. The Committee had to consider all the circumstances, including the seriousness of the case, the possibility of reaching a wrong conclusion about the reason for absence or the merits, the public interest in expeditious disposal, and fairness to the registrant. The guidance in Jawid Yusuf v The Royal Pharmaceutical Society of Great Britain [2009] EWHC 876 (Admin) was applicable: the key question was whether the practitioner had voluntarily chosen not to attend, and no extensive enquiry was required.

3. The appellant knew the hearing date. He had been told to apply in writing for any further adjournment, as he had done previously, but made no such application and produced no written medical evidence or evidence of his efforts to obtain representation. The Committee was entitled to conclude that he had voluntarily chosen not to attend.

4. The Committee’s reasons were adequate, although shorter than those given on the earlier occasion. It had been advised to proceed cautiously and had considered the absence of an adjournment application, the presence of witnesses, and the need for expedition. The fact that the Committee had not been told of the earlier direction concerning direct cross-examination did not amount to reviewable error, because the appellant’s failure to engage had deprived him of the opportunity to raise the point.

5. The Council had also allowed the appellant to make submissions by telephone and in person before sanction was determined. The decision to proceed was therefore not flawed. The appeal was dismissed, with the respondent’s costs payable in the ordinary way.

This was a statutory appeal to the High Court from decisions of the Nursing and Midwifery Council’s Competence and Conduct Committee. The Committee proceeded in the appellant’s absence, found the allegations proved, found impairment of fitness to practise, and struck him off the register. The High Court dismissed the appeal.