Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council & Anor

A finding that a practitioner’s fitness to practise is not impaired must reflect both present risk and the wider public interest. A panel must consider whether a finding of impairment is needed to uphold proper professional standards and maintain public confidence in the profession.

The questions whether misconduct is remediable, has been remedied and is unlikely to recur are relevant considerations. They are not an exhaustive legal test. Their weight depends on the nature of the misconduct. Where serious and persistent misconduct reveals attitudinal or behavioural failings, a panel must scrutinise asserted insight and rehabilitation with particular care.

The Council for Healthcare Regulatory Excellence referred, under NHS Reform and Health Professions Act 2002, a decision of the Nursing and Midwifery Council’s Conduct and Competence Committee concerning a registered nurse and midwife.

The Committee found serious misconduct proved. It included failures towards vulnerable patients, bullying and harassment of a junior colleague, inadequate support and record alteration following the birth and death of a baby. It nevertheless concluded that the registrant’s fitness to practise was not impaired, relying on asserted remediation, training and insight.

The Council and the Nursing and Midwifery Council contended that the decision was unduly lenient. The central issue was whether the Committee had applied the correct approach to current impairment and whether its conclusion was manifestly inappropriate.

1. Appeal allowed. The Committee’s finding that the registrant’s fitness to practise was not impaired was unduly lenient. The court substituted a finding of impairment and remitted sanction to a differently constituted Committee.
2. On a reference under section 29, the court conducts a merits review while according appropriate weight to the specialist tribunal’s expertise. The question was whether the no-impairment decision was manifestly inappropriate, having regard to the registrant’s misconduct and the public interest. The court followed the approach in Council for the Regulation of Healthcare Professionals v General Medical Council and Ruscillo [2005] 1 WLR 717.
3. Impairment is assessed at the hearing date and prospectively. It requires consideration of remediation and the likelihood of repetition. It also requires the panel to consider whether the protection of the public, the maintenance of public confidence, and the upholding of proper professional standards require a finding of impairment.
4. The Committee erred by treating the three matters identified in R (on the application of Cohen) v General Medical Council [2008] EWHC 581 (Admin) as a determinative three-fold legal test. They were relevant factors, not a substitute for the wider public-interest inquiry. The omission was especially serious because, under the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, a no-impairment finding left no mechanism to mark the serious misconduct by a warning.
5. This was not an isolated clinical lapse. The misconduct was serious, persistent and principally behavioural. It involved a lack of sensitivity towards distressed patients, bullying of a junior colleague, and inaccurate alteration of records. The case was more analogous to the public-confidence considerations considered in Yeong v GMC [2009] EWHC 1923 (Admin) than to the isolated clinical error in Cohen.
6. The Committee had accepted the registrant’s claimed insight and rehabilitation without the necessary scrutiny. Her continuing denial of the allegations until they were proved, limited acknowledgement of wrongdoing, lack of recent clinical evidence, and the limited relevance of much of the training did not support its conclusion. Its reliance on demeanour and on the absence of disciplinary action over later incidents was unsustainable on the evidence.

• High Court (Administrative Court): Allowed the statutory appeal, substituted a finding that fitness to practise was impaired, and remitted sanction: [2011] EWHC 927 (Admin).
• Nursing and Midwifery Council Conduct and Competence Committee: On 21 April 2010 found misconduct proved but concluded that the registrant’s fitness to practise was not impaired.