Hannah Beety & Ors, R (On the Application Of) v Nursing And Midwifery Council

Whether an indemnity arrangement provides appropriate cover is a broad statutory judgment for the Registrar. The assessment must have regard to both the nature and the extent of the risks of practice. A low probability of catastrophic injury does not make the risk immaterial where the consequences are severe and the arrangement lacks resources to meet the resulting liability.

On judicial review, the court reviews legality and public-law rationality rather than conducting a merits trial between competing expert opinions. A restriction on practice is proportionate where it protects the public, is confined to higher-risk work, and does not require the regulator to prescribe a precise level of cover in advance.

The claimants, three independent midwives and a former client, challenged the NMC Registrar’s decision that the Lucina discretionary indemnity scheme did not provide appropriate cover under article 12A of the Nursing and Midwifery Order 2001. The Registrar had concluded that Lucina lacked sufficient financial resources or reinsurance to meet a catastrophic or serious claim and directed that midwives relying on it for intrapartum care would be removed from the register unless they obtained alternative cover.

The claim alleged error of law, failure to take relevant matters into account, procedural unfairness, irrationality, and disproportionate interference with EU rights and property rights. The central issues were the proper statutory approach to appropriate cover, the intensity of judicial review, and the proportionality of the registration consequences.

1. Claim dismissed. The Registrar was required to decide whether the arrangement provided cover against liabilities which might be incurred in practice, having regard to the nature and extent of the risks. Article 12A imposed a broad evaluative test and did not prescribe a formula, a particular confidence level, or a fixed amount of capital.
2. The Registrar lawfully treated protection of the public as the governing objective. Independent midwifery might reduce some risks, but did not eliminate the risk of severe injury during childbirth. The very low probability of a catastrophic claim did not justify disregarding the risk where the consequences could include very substantial damages and lifelong care costs.
3. The Registrar was entitled to conclude that Lucina’s low asset base, discretionary scheme structure, absence of reinsurance, and limited guarantee did not provide sufficient assurance that a large claim could be met. She was also entitled to prefer the evidence of the NMC’s independent actuary. Judicial review was not a merits hearing in which the court could select between competing expert models.
4. It was reasonable to consider Solvency II as a benchmark because Lucina relied on it, but Lucina was not subject to that regime and satisfaction of the SCR alone did not establish appropriate cover. The Registrar was entitled to consider other matters, including minimum capital, testing methodology, reverse stress testing, and claims accrual.
5. The registration consequence was proportionate. It was limited to reliance on Lucina for intrapartum care, while leaving open ante-natal and post-natal practice and alternative forms of employment or cover. The Registrar had no duty to state in advance the precise level of assets or cover required.
6. The alleged EU-law restrictions were justified under the proportionality principle. The Registrar could not exempt this group from a mandatory statutory requirement. Article 1 of Protocol 1 was not engaged because the claimants had no protected tradeable goodwill; in any event, any interference would have been justified and proportionate. The claim was dismissed.