McDaid v Nursing & Midwifery Council

An appellate court reviewing a professional disciplinary decision should respect the specialist tribunal’s fact-finding function and should not retry the evidence. A tribunal may proceed in a registrant’s absence only after exercising its discretion with great care and caution, having regard to fairness and all relevant circumstances.

If it proceeds, it must take reasonable steps to expose weaknesses in the presenting party’s case and to make points available to the absent registrant. That duty does not require the tribunal to cross-examine witnesses as an advocate would. Where material evidence omitted from the original hearing may substantially affect the findings, the appellate court may quash the decision and remit the matter to a fresh tribunal.

The appellant, a registered midwife, appealed under articles 29(9) and 38 of the Nursing and Midwifery Order 2001 against a Conduct and Competence Committee decision finding multiple allegations of misconduct proved and imposing a striking-off order. She also sought judicial review concerning the respondent’s referral of the matter to the Independent Safeguarding Authority.

The appeal challenged panel bias, the decision to proceed in her absence, the fairness of the hearing, and the substantive findings. During the appeal, a letter potentially bearing on one charge was produced. The central issues were whether the panel had acted lawfully and fairly, and whether the new material required the disciplinary decision to be quashed.

1. Appeal framework. The appeal was governed by CPR 52.11 and was primarily a review of the Committee’s decision. The court should not conduct a fresh fact-finding exercise or reassess witness credibility merely because another conclusion might be possible. The specialist tribunal’s expertise and its advantage in hearing witnesses were entitled to appropriate weight.
2. Panel composition. Applying the fair-minded and informed observer test in Porter v Magill [2002] 2 AC 357, the court held that Mr Heath’s limited professional awareness of witnesses did not create a real possibility of bias. The panel was entitled to remain constituted as it was.
3. Proceeding in absence. The principles in R v Hayward [2001] EWCA Crim 168, approved in R v Jones (Anthony) [2002] UKHL 5 and applied to regulatory proceedings in Tait v The Royal College of Veterinary Surgeons [2003] UKPC 34, applied. The panel had to exercise its discretion with great care and caution, balancing fairness to the registrant against the public interest and the interests of witnesses. On the facts, it was entitled to proceed.
4. Fairness during the hearing. Once proceeding in the appellant’s absence, the panel had to take reasonable steps to expose weaknesses in the NMC’s case and make points for the appellant as the evidence permitted. This was not a duty to conduct detailed cross-examination. The panel had asked relevant questions and had considered material bearing on the appellant’s account, so this ground failed. The same conclusion followed under the approach in R (on the application of Compton) v General Medical Council [2008] EWHC 2868 (Admin).
5. Fresh evidence and remission. The February statement failed the principles governing fresh evidence identified in Al-Koronky v Time Life Entertainment Group [2006] EWCA Civ 1123 and Ladd v Marshall [1954] 1 WLR 1489. The 18 March letter was different: it was potentially crucial to Charge 2 and could affect the panel’s assessment of the appellant’s credibility across all charges. The panel’s decision was therefore quashed and the matter remitted to a new panel. The interim suspension was extended until 14 days after the new panel’s decision or further order. Costs were reserved.
6. Judicial review. The court declined leave. It was unnecessary to decide whether reasons were generally required for an NMC referral to the ISA because the NMC had stated its reasons and the ISA had subsequently concluded that the appellant was not a danger to children or vulnerable adults.

This was an appeal from a Conduct and Competence Committee decision. No lower-court citation was stated. The appeal was allowed only because material evidence had not been placed before the Committee.