Professional Standards for Health And Social Care (PSA) v Nursing And Midwifery Council (NMC) & Anor (Rev 1)

On a statutory appeal from a professional regulator, the court must decide whether the decision was wrong and may give weight to an expert committee only where the material evidence was before it. A submission of no case to answer ordinarily requires the regulator first to open and present its evidence. The tribunal cannot apply the Galbraith test where it has considered no evidence. Regulatory officials cannot usurp the role assigned by the statutory scheme to an independent committee by deciding that there is no case to answer. A regulator investigating misconduct must take reasonable, active steps to obtain relevant evidence, particularly where the allegations may affect public protection and confidence. The court may quash and remit decisions reached on an incomplete or inaccurate evidential basis.

The Professional Standards Authority appealed under section 29 of the National Health Service Reform and Health Professions Act 2002 against the Nursing and Midwifery Council’s decision concerning a registered nurse. The NMC had decided to offer no evidence on a charge alleging that the nurse was directly or indirectly responsible for non-accidental injuries to her infant child. Its Conduct and Competence Committee determined that there was no case to answer.

The NMC had not obtained the Family Court judgment or relevant medical evidence. The appeal concerned whether the NMC and the Committee had acted lawfully in deciding the charge without opening the case, presenting evidence or adequately investigating the available material.

1. Appeal allowed. The court quashed the NMC’s decision to offer no evidence on charge 2 and the Committee’s decision that there was no case to answer. The case was remitted with directions for the NMC to reconsider further evidence, use its best endeavours if appropriate, and in any event present evidence to the Committee. The Committee was directed to rehear the charge. The NMC could reformulate the charge in the light of the evidence.
2. Under section 29 of the National Health Service Reform and Health Professions Act 2002, the court treated the reference as an appeal and applied the question whether the decision was wrong. Where all material evidence has been put before an expert decision-maker, the court should give appropriate weight to its expertise. Where material evidence has not been put before it, the decision must be reassessed, following Ruscillo v Council for the Regulation of Healthcare Professionals [2004] EWCA Civ 1356.
3. Under rule 24 of the Nursing and Midwifery Council (Fitness to Practise) Rules Order 2004, the NMC was required to open its case. Rules 24(7) and 24(8) permitted the Committee to accept a submission of no case to answer only after the NMC had closed and presented its evidence, and only at the registrant’s instigation or on the Committee’s own volition. Rule 24(1) could not create procedural shortcuts.
4. The Committee had been given an inaccurate and incomplete account of the injuries, the Family Court proceedings and the NMC’s efforts to obtain evidence. The material available raised a case to answer. The absence of a criminal conviction was irrelevant because the criminal standard of proof differed from the civil standard applied by the regulator. The NMC had also failed actively to use its power under article 25 of the Nursing and Midwifery Order 2001 to obtain relevant documents and witness evidence.
5. The question whether there was evidence sufficient to establish a case to answer was distinct from whether the evidence was sufficient confidently to proceed with the hearing. The statutory scheme allocated decisions about misconduct allegations to the NMC’s independent committees.

• High Court (Administrative Court): allowed the PSA’s statutory appeal under section 29 of the National Health Service Reform and Health Professions Act 2002, quashed the NMC and Committee decisions, and remitted the case.
• Nursing and Midwifery Council Conduct and Competence Committee: determined that there was no case to answer on charge 2 after the NMC offered no evidence. The decision was notified on 10 July 2017.