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

A statutory disciplinary tribunal generally has no power to rescind or reopen a final decision once communicated, except to correct an accidental error which does not substantially affect the parties’ rights or the decision. A flawed exercise of judgment is not such a slip. A professional regulator must also respect a clear substantive promise that allegations will not proceed, unless departure is a proportionate response to a legitimate public interest. The burden of justification lies on the public authority. A regulator’s departure from its published procedures may also breach a procedural legitimate expectation where the departure is unfair and amounts to an abuse of power.

The claimant, a registered nurse, sought judicial review of the Nursing and Midwifery Council’s decision to set aside an Investigating Committee finding that there was no case to answer concerning allegations about the care of Patient A. The original decision had attributed the deficiencies principally to systemic failures at the care home. After receiving further representations from the police and internal legal memoranda, the NMC concluded that the earlier panel had applied the wrong test and had made a slip.

The claimant argued that the NMC lacked power to reopen the decision and had breached both substantive and procedural legitimate expectations. The NMC relied on R (on the application of Jenkinson) v The Nursing and Midwifery Council [2009] EWHC 1111 (Admin). The central issues were whether the Investigating Committee could reverse its final decision and whether the NMC could lawfully resile from its previous representation.

1. Outcome. Permission was granted and the claim for judicial review was allowed. The NMC acted unlawfully and beyond its powers in rescinding and reversing the Investigating Committee’s decision of 16 March 2011.
2. The Investigating Committee was a statutory committee whose powers and duties were defined by the Nursing and Midwifery Order 2001 and the Nursing and Midwifery Council (Fitness to Practise) Rules 2004. Articles 26(1), 26(2)(d) and 26(5) required it to investigate allegations, decide whether there was a case to answer and notify the parties of its decision and reasons. Rule 7 provided a specific route for reconsideration following a no-case-to-answer decision where a fresh allegation was received within three years. That route did not apply.
3. Following Akewushola v Secretary of State for the Home Department [2000] 1 WLR 2295, a statutory tribunal ordinarily could not rescind or review its own final decision. Its residual power was limited to correcting accidental errors which did not substantially affect the parties’ rights or the decision. The first panel’s reasoning, although possibly flawed or clumsily expressed, involved an exercise of judgment about systemic failures and the realistic prospect of impairment. It was not an accidental slip.
4. The exceptional circumstances in Jenkinson were materially different. They involved a decision founded on a conviction later quashed, with no room for uncertainty as to the proper outcome and with the claimant benefiting from rescission. The court therefore followed Akewushola rather than Jenkinson.
5. The NMC’s clear notification that there was no case to answer created a substantive legitimate expectation that the allegations would not proceed. Under R v North and East Devon HA ex p Coughlan [2001] QB 213 and Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363, departure required a proportionate justification. The NMC could not show that reopening these allegations was necessary or struck a fair balance, particularly given the nature of the allegations, the claimant’s unblemished subsequent practice and the absence of a material change of circumstances.
6. The NMC also breached the claimant’s procedural legitimate expectation by departing from its established and published procedures. Applying R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, the departure was unfair and amounted to an abuse of power.