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

In professional disciplinary proceedings, fairness in admitting evidence requires an objective assessment. Where late evidence is crucial, the tribunal should consider whether an adjournment can cure prejudice rather than exclude the evidence outright. Fairness to registrants must be balanced against the public interest in the tribunal reaching the correct determination, particularly on allegations of dishonesty. On a statutory appeal, additional evidence may be admitted where doing so is truly in the public interest, but parties must have a proper opportunity to challenge it. A disciplinary tribunal’s evaluative assessment of witnesses and facts will generally receive substantial weight. An appeal based on regulatory failures in investigating or prosecuting a case requires serious shortcomings.

The Professional Standards Authority appealed under section 29 of the National Health Service Reform and Health Care Professions Act 2002 against joined decisions of the Nursing and Midwifery Council’s Fitness to Practise Committee concerning two registered nurses. The Panel rejected allegations that the nurses had dishonestly produced or submitted a Basic Life Support certificate before the relevant training had occurred.

During the hearing, the Panel refused to admit a late-disclosed email which appeared to show that the certificate had been sent to an employment agency in January 2017. The Authority challenged that ruling, the Panel’s factual conclusion, and the manner in which the case had been prosecuted.

1. Appeal allowed and charge 4 remitted. The Panel’s refusal to admit the late-disclosed email was wrong. Under rule 31 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, relevance and fairness governed admissibility.
2. The email was crucial, potentially conclusive evidence on when the certificate was submitted. Admission without an adjournment would have been unfair because the registrants had no proper opportunity to investigate authenticity or obtain expert evidence. However, an adjournment could have cured that prejudice.
3. The Panel failed to distinguish between admitting the email and continuing immediately, and admitting it while adjourning to allow the registrants to respond. It also failed to give proper weight to the public interest in determining a serious dishonesty allegation. The public interest substantially outweighed the prejudice arising from an adjournment.
4. The Authority could not rely on the email on the appeal itself. The registrants had not yet had a proper opportunity to challenge it. The principle stated in Council for the Regulation of Health Care Professionals v General Medical Council and Ruscillo [2004] EWCA Civ 1356 applied: additional evidence in a section 29 appeal is not governed by Ladd v Marshall, but its admission must truly serve the public interest.
5. Without the email, the Panel was entitled to find the dishonesty charge unproved. The evidence was inconsistent, the relevant agency employee was not called, the date stamps were unreliable, and the Panel had assessed the witnesses directly. Its evaluative judgment was entitled to substantial weight.
6. The prosecution ground failed. Although the regulator’s evidence-gathering could fairly be criticised, the shortcomings were not sufficiently serious to justify allowing the appeal on that basis. The charge was remitted for fresh consideration, with directions to ensure that the email could be admitted and properly challenged.

The Authority appealed under section 29 of the National Health Service Reform and Health Care Professions Act 2002 against decisions of the Nursing and Midwifery Council Fitness to Practise Committee. The appeals were joined and allowed in respect of the refusal to admit the email. Charge 4 was remitted for fresh consideration.