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

A disciplinary tribunal must assess both the fact of professional misconduct and the reasons for it when deciding current fitness to practise. Where disputed allegations may reveal an underlying attitudinal problem, they must be identified and determined before remediation and present fitness can properly be assessed. A failure to consider such allegations may constitute a serious procedural irregularity and make a decision unduly lenient. The statutory review is treated as an appeal. The court may quash the decision and remit the matter for rehearing.

A Conduct and Competence Committee found that a nurse had committed serious professional misconduct by failing to refer allegations of abuse of vulnerable residents to safeguarding authorities, but concluded that his current fitness to practise was not impaired. The Professional Standards Authority referred the decision to the High Court under section 29 of the National Health Service Reform and Health Care Professions Act 2002, alleging undue leniency and procedural irregularity.

The central issue was whether the Committee had been required to consider three additional allegations concerning the nurse’s conduct and motivation, and whether its failure to do so invalidated the impairment decision.

1. The appeal was allowed. The Committee’s decision was quashed and the matter was remitted to a differently constituted panel for rehearing. The Council was directed to draft new charges including the additional allegations.

2. Under section 29(7) of the National Health Service Reform and Health Care Professions Act 2002, the reference was treated as an appeal subject to CPR 52.11(3). The court applied the principles in Ruscillo v Council for the Regulation of Health Care Professionals and General Medical Council [2004] EWCA Civ 1356: undue leniency is assessed by asking whether the tribunal properly performed its task, having regard to the relevant facts, public safety and the reputation of the profession.

3. A disciplinary tribunal is not confined to a criminal-trial model. It must take a proactive approach to ensuring that the case is properly presented and the relevant evidence is before it. Important allegations need not always appear as separate charges, but disputed allegations which may materially illuminate the seriousness or cause of misconduct should ordinarily be pleaded. A charge focuses the parties’ submissions and the tribunal’s decision-making.

4. The three allegations were capable of showing that the nurse’s omissions resulted from a serious underlying attitudinal problem, including an improper view of complaints by elderly or demented residents. The Committee therefore had to determine whether the allegations were true and assess their significance before deciding impairment.

5. Without identifying the reasons for the nurse’s past unfitness, the Committee could not properly decide whether remediation had succeeded or whether he was currently fit to practise. Its failure to address the allegations and their significance was a serious procedural irregularity and rendered the decision unduly lenient.

6. The court declined to determine the alternative submission that the impairment decision was substantively unduly lenient, leaving the rehearing panel free to consider all relevant evidence, including subsequent good conduct and remediation.

• High Court (Administrative Court): The reference under section 29 of the National Health Service Reform and Health Care Professions Act 2002 was allowed. The Committee’s decision was quashed and the matter remitted to a differently constituted panel.