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

An appellate court reviewing a professional disciplinary sanction must respect the regulator’s evaluative expertise, but may intervene where the decision involves an error of principle or falls outside the range of reasonable decisions. Serious dishonesty by a healthcare professional to conceal clinical failings may engage public protection, even where the underlying clinical shortcomings have been remediated. Dishonesty to an investigation or coroner may aggravate the misconduct because candour is essential to protecting the public and maintaining confidence in the profession. A caution is inadequate where it cannot reasonably reflect the seriousness of such misconduct. The appropriate sanction remains fact-sensitive, and the case may be remitted for fresh determination where the appellate court lacks sufficient information to impose the sanction itself.

The Professional Standards Authority appealed under section 29 of the National Health Service Reform and Health Care Professions Act 2002 against a decision of an NMC Fitness to Practise Committee concerning a mental health nurse. The nurse admitted serious clinical failings in assessing Patient A, which contributed to the loss of a material chance to prevent Patient A’s death. The panel also found that she had dishonestly provided incorrect accounts during an internal investigation and to the coroner.

The panel found current impairment on public-interest grounds, but not on public-protection grounds, and imposed a three-year caution order. The central issues were whether dishonesty required a public-protection finding and whether the sanction was sufficient.

1. Appeal allowed. The panel’s caution order was quashed and the matter was remitted to a differently constituted Fitness to Practise panel for determination of the appropriate sanction.
2. Under section 29 of the National Health Service Reform and Health Care Professions Act 2002, the High Court acts as an appellate court conducting a review, not a rehearing. Under CPR Part 52, intervention is justified where the decision is wrong or unjust because of serious procedural or other irregularity. A sanction is a multi-factorial evaluative decision, so the court should intervene only for an error of principle or where the decision falls outside the regulator’s reasonable range. Deference is appropriately greater for technical or clinical matters and less for behavioural matters such as dishonesty.
3. The panel was wrong in principle to conclude that impairment was unnecessary on public-protection grounds. The respondent’s clinical failings were serious and contributed to the loss of a material chance to prevent death. She then dishonestly attempted to conceal those failings during the Trust’s serious-incident investigation and repeated the dishonesty in her report to the coroner.
4. Remediation of clinical errors and the absence of later dishonesty did not answer the public-protection concern. The respondent had not accepted responsibility for the serious dishonesty. Nurses must be honest, and candour was essential to the purpose of the investigation. Dishonesty to a coroner also risked prejudicing the inquest and demonstrated a failure to appreciate the seriousness and consequences of the conduct.
5. The caution order could not reasonably reflect the seriousness of dishonesty on two occasions to conceal clinical failings. The court declined to impose a sanction itself because it lacked sufficient information about the basis for the sanction imposed on the other nurse involved. The fresh panel was to consider all relevant evidence, including any argument concerning parity.

• High Court (Administrative Court): the PSA appealed the NMC Fitness to Practise Committee’s decision. The appeal was allowed to the extent that the caution order was quashed and the sanction issue was remitted.
• NMC Fitness to Practise Committee: found misconduct and impairment on public-interest grounds, but not on public-protection grounds, and imposed a three-year caution order.