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

Where a professional disciplinary committee considers proceeding in a registrant’s absence, service of the hearing notice and the decision whether to proceed are distinct questions. Even where service complies with the applicable rules, the committee must exercise its discretion with the utmost care and caution. It must consider the circumstances indicating whether the registrant knew of, or intended to participate in, the hearing, and must give reasons demonstrating that the discretion has genuinely been exercised. A perfunctory decision based only on non-response is inadequate. Failure to conduct that separate discretionary assessment is a fatal procedural defect requiring the decision to be quashed and the matter reheard.

The claimant, a registered nurse, appealed against findings of misconduct and a striking-off order imposed by the Nursing and Midwifery Council’s Conduct and Competence Committee. She had not attended the hearing, and the recorded-delivery notice sent to her registered address had been returned unopened and marked as not called for.

The central issue was whether the Committee had lawfully proceeded in her absence under the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004. The claimant also challenged the treatment of evidence and the severity of the sanction.

1. Appeal allowed. The Committee’s decision was quashed and the matter was remitted for a fresh rehearing, with fresh notice. There was no order as to costs.
2. Under rule 21, the Committee had to undertake two distinct stages. First, it had to decide whether reasonable efforts had been made to serve the notice and whether the notice had been duly served. Secondly, if satisfied on service, it had to decide whether to proceed in the registrant’s absence or adjourn.
3. Following Jatta v Nursing and Midwifery Council [2009] EWCA Civ 824, service was duly effected despite the recorded-delivery envelope being returned unopened and undelivered. The rules required notice to be sent to the registered address and did not impose an additional requirement to use another means of communication.
4. The discretionary stage required the utmost care and caution. The Committee had to consider the circumstances as a whole, including the indications in the case-management form that the claimant might have intended to attend and participate. The legal assessor correctly addressed service but failed to explain that service merely opened the door to a separate discretion or how that discretion should be exercised. The Committee moved rapidly to its ruling and gave only the self-evident reason that the claimant had not responded. It therefore failed to exercise the discretion properly.
5. The approach was consistent with Yusuf v The Royal Pharmaceutical Society of Great Britain [2009] EWHC 867 (Admin), and with the high-authority principle, drawn from R v Hayward, R v Jones (Anthony) and Tait v Royal College of Veterinary Surgeons, that proceeding in a person’s absence requires exceptional care.
6. The challenges to the handling of the evidence and to the striking-off sanction failed. Given the findings of dishonest fabrication of references and a fictitious referee, striking-off was within the Committee’s discretion.

This was a statutory appeal from decisions of the Nursing and Midwifery Council’s Conduct and Competence Committee. The High Court allowed the appeal on the procedural ground, quashed the Committee’s decision and remitted the matter for a fresh hearing. The other grounds were dismissed.