Professional Standards Authority for Health and Social Care (PSA) v Nursing and Midwifery Council & Anor

An appellate court should respect a specialist regulator’s evaluative decision on sanction, but must intervene where the decision is wrong or unjust because of a serious procedural irregularity. Reasons must adequately connect findings of misconduct and impairment to the sanction selected. Particular weight cannot properly be given to an absence of later regulatory concerns where the tribunal has found limited insight and a significant risk of repetition, without explaining the apparent inconsistency. Where the appropriate sanction is clear and remission would serve no useful purpose, the court may substitute its own sanction. Erasure is appropriate in the rare case where deliberate and planned misconduct places a highly vulnerable patient at serious risk and is fundamentally incompatible with continued registration.

The Professional Standards Authority appealed under section 29 of the National Health Service Reform and Healthcare Professions Act 2002 against a Fitness to Practise Committee determination suspending a nurse’s registration for 12 months. The Committee had found that the nurse deliberately slept while responsible for a highly vulnerable patient, placed the patient in a dangerous position and exposed him to a serious risk of harm. It found misconduct, impairment, very limited insight and a significant risk of repetition.

The Authority contended that the sanction was insufficient and that the Committee had misapplied the Council’s sanctions guidance, particularly by relying on three years without further regulatory concerns. The Council supported the appeal and accepted that erasure was the appropriate sanction. The central issues were whether the sanction decision was wrong or inadequately reasoned and whether the court should substitute erasure or remit the matter.

1. Appeal allowed. The Committee’s suspension order was quashed and an order for erasure from the register was substituted under section 29(8) of the National Health Service Reform and Healthcare Professions Act 2002.
2. The court began from the principle that respect should be afforded to a specialist tribunal’s evaluative decision on sanction. The degree of deference depends on the circumstances. The court could correct material errors of law or fact and intervene where the decision was wrong under CPR r 52.21.
3. The Committee’s findings at the impairment stage were stark. The misconduct was deliberate, planned and selfish; it placed a highly vulnerable patient at serious risk of severe harm; insight was very limited; and there was a significant risk of repetition. Those findings were directly relevant to the sanctions guidance on erasure and on conduct that may be difficult to remedy.
4. The Committee failed adequately to carry its impairment findings through into its sanction assessment. Its reliance on three years without further regulatory concerns appeared inconsistent with the finding of limited insight and significant risk of repetition. The reasoning was insufficiently explained and placed disproportionate weight on the single-incident nature of the misconduct and the absence of subsequent concerns.
5. Although remission is generally appropriate where the court cannot safely determine the proper penalty, substitution is permissible where the outcome is sufficiently clear that remission would serve no useful purpose. This was a rare case in which the court could safely conclude that erasure was required. The deliberate disregard for the patient, the seriousness of the risk, the lack of insight and the regulators’ agreement that erasure was appropriate justified that conclusion.

The judgment does not state the citation of any earlier appellate decision in the same litigation. The appeal was brought directly to the High Court under section 29 of the National Health Service Reform and Healthcare Professions Act 2002 against the Fitness to Practise Committee’s sanction determination dated 30 September 2022.