Jatta, R (on the application of) v Nursing and Midwifery Council

A professional regulator may proceed with a disciplinary hearing in a registrant’s absence where its service rules are satisfied. That discretion must nevertheless be exercised compatibly with fairness and public law requirements. In exceptional circumstances, including active engagement by the registrant, known unavailability at the registered address and a known alternative means of contact, the regulator may be required to take a further practical step to notify the registrant that correspondence awaits collection. This does not create a general exception to the obligation to keep registration details updated.

The claimant, a registered nurse, appealed against the decision of the Nursing and Midwifery Council’s Conduct and Competence Committee to strike him from the register following criminal convictions relating to the obtaining of medicinal products by deception. The Committee conducted the hearing in his absence after notices sent to his registered address were returned.

The appeal challenged the decision to proceed in his absence, the adequacy of the reasons, and the proportionality of the sanction. The central issue was whether, despite compliance with the formal service rules, the Council was required in the particular circumstances to take an additional step to alert him to the hearing.

1. Appeal allowed and matter remitted. The Committee was entitled under rule 21(2) of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 to proceed in the registrant’s absence if satisfied that the hearing notice had been duly served. The exercise of that discretion was not, however, determined solely by mechanical compliance with the service provisions.
2. The relevant circumstances included the registrant’s substantial engagement with the proceedings, his provision of an e-mail address, the Council’s knowledge that he was no longer at the registered address, his absence abroad, and the absence of any practical purpose in sending correspondence to another address while he was abroad. In that unusual combination of circumstances, the case officer was required as a matter of public law to send a short e-mail informing him that correspondence was available for collection.
3. The omission materially vitiated the subsequent decision to proceed in his absence. There was no criticism of the Committee itself, but the matter had to be reheard by another Committee.
4. The decision was confined to its exceptional facts. It was not a general qualification of the registrant’s duty under rule 16(1) to notify the Registrar of changes of address, nor a general requirement for the Council to depart from its system of service at registered addresses.
5. The challenges to the adequacy of the reasons and the sanction would have failed. The Committee had considered the exceptional circumstances, the dishonesty, the repeated nature of the offending, its connection with professional practice, the lack of insight, and the need to maintain public confidence. The striking-off decision was therefore not independently unlawful on those grounds.

• Nursing and Midwifery Council Conduct and Competence Committee: struck the claimant from the register on 28 August 2008 after proceeding in his absence.
• High Court (Administrative Court): allowed the appeal on the procedural ground and remitted the matter to another hearing. Permission to appeal to the Court of Appeal was granted.