The Professional Standards Authority for Health and Social Care v The Nursing and Midwifery Council & Anor

On an appeal against a professional disciplinary sanction, under-charging may amount to a serious procedural irregularity where omitted allegations are material to assessing the registrant’s culpability and the appropriate sanction. A charge that a registrant failed to report misconduct is materially different from a charge that he deliberately remained silent to protect a colleague and thereby placed that colleague’s interests above those of a vulnerable patient. The tribunal must consider the registrant’s reasons and motive where they bear directly on the seriousness of the conduct, insight, remediation and public protection. The court may quash and remit the decision where the deficient charges prevent it from assessing whether the sanction was unduly lenient.

The Professional Standards Authority appealed under section 29 of the National Health Service Reform and Health Care Professions Act 2002 against a Conduct and Competence Committee decision imposing a nine-month Conditions of Practice Order on a registered mental health nurse. The nurse admitted failing to report promptly that he had witnessed a senior colleague use inappropriate force against a vulnerable patient. The Authority argued that the charges failed to reflect the seriousness of the conduct, that the sanction was unduly lenient, and that the Committee gave inadequate reasons. The central issues were whether dishonesty or a deliberate motive to protect the colleague should have been charged, and whether the Committee’s failure to address the reasons for the five-month delay constituted a serious procedural irregularity.

1. The appeal was allowed. The Committee’s decision was quashed and the matter was remitted to a differently constituted Conduct and Competence Committee.

2. The principles in Ruscillo v Council for the Regulation of Health Care Professionals and General Medical Council [2004] EWCA Civ 1356 applied. The court had to ask whether the sanction was one which a reasonable disciplinary tribunal could have imposed having regard to the material facts, public safety and the reputation of the profession. Where a serious procedural irregularity prevents that assessment, the court may remit the matter.

3. The failure to charge dishonesty was not, on the evidence, a serious irregularity. The nurse had not given a positively false account and had eventually disclosed the full incident. His conduct showed misplaced loyalty and reluctance to whistle-blow, but the evidence did not establish a realistic prospect of proving dishonesty. The cases concerning under-charging in R(Council for the Regulation of Health Care Professionals) v GMC and Rajeshwar [2005] EWHC 2973 (Admin) and R(Council for the Regulation of Health Care Professionals) v NMC and Kingdom [2007] EWHC 1806 (Admin) illustrated the significance of charging allegations which materially affect sanction.

4. The charges nevertheless failed to reflect the true seriousness of the conduct. There was ample material to justify alleging that the nurse deliberately failed to escalate his concerns in order to support or protect the colleague who had mistreated the patient, thereby putting the colleague’s interests ahead of the patient’s interests. That allegation was distinct from dishonesty and could have been drafted clearly without creating uncertainty about the case to be met.

5. The Committee failed to address the nurse’s explanations in 2011 and 2012, or to compare them with his later explanations. Those matters were of central importance in deciding whether the root cause was inadequate knowledge of safeguarding duties or a deeper attitudinal problem. They also bore directly on insight, remediation, public protection and whether Conditions of Practice or suspension was appropriate. The reasons were therefore inadequate in the context of the under-charged case.

6. The matter was remitted with a direction that the charges be amended to allege clearly that the reason or motive for the failure to report was to support or protect the colleague. The original, lesser charge was to remain as an alternative. Erasure was not considered appropriate even if the reformulated allegation were proved.

• High Court (Administrative Court): allowed the Professional Standards Authority’s appeal against the Conduct and Competence Committee decision of 17 April 2014, quashed the Conditions of Practice Order, and remitted the matter to a differently constituted Committee.