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

On a statutory appeal against a professional disciplinary sanction, the court exercises a supervisory jurisdiction. It may intervene where the specialist tribunal has erred in principle or reached a sanction outside the bounds of a proper and reasonable evaluative judgment.

Sanctions principally protect the public, maintain professional standards and preserve confidence in the profession. Deliberate violence towards a vulnerable patient, dishonesty connected with employment, and breaches of practice restrictions may together be fundamentally incompatible with continued registration. Personal mitigation, an unblemished career and possible future insight carry limited weight where the underlying conduct seriously undermines public confidence. A tribunal must address the relevant sanctions guidance and consider striking off before concluding that suspension is sufficient.

The Professional Standards Authority appealed under section 29 of the National Health Service Reform and Health Care Professions Act 2002 against a Fitness to Practise Committee decision dated 17 January 2023.

The Committee had found that a nurse deliberately assaulted a restrained patient and dishonestly withheld employment information, but imposed a 12-month suspension. It also found some alleged breaches of an interim order not proved and concluded that two proved breaches did not amount to misconduct. The NMC conceded the appeal, while the Registrant appeared in person and resisted it.

The central questions were whether the Committee’s findings and sanction were legally or evaluatively flawed, whether the interim-order allegations were proved and amounted to misconduct, and what remedy the court should impose.

1. Appeal allowed. The Committee’s sanction determination was quashed and a striking-off order substituted.
2. An appeal under section 29 of the National Health Service Reform and Health Care Professions Act 2002 is by way of review. The court should intervene where the tribunal made an error of principle or reached a decision outside the bounds of what it could properly and reasonably decide. In sanction appeals, the question commonly concerns whether the penalty was manifestly inappropriate having regard to the conduct and public protection.
3. The Committee materially understated the assault. The patient was fully restrained and presented no threat when the Registrant deliberately used a chair against him and later kicked towards his head. The Committee also wrongly treated the assault as a reaction to fast-moving events and relied on the Registrant’s experience, which was irrelevant to whether the conduct was misconduct.
4. The finding of sufficient insight into the assault was unsustainable. The Registrant maintained a denial inconsistent with the CCTV, gave no explanation for her conduct, and her training, reflective statements and therapy did not demonstrate insight into the assault or its implications for public confidence. The Committee’s distinction between public protection and public confidence was wrong in principle because the latter are aspects of the overarching public-protection objective.
5. The Committee misapplied the Sanctions Guidance. It should have considered fundamental incompatibility before relying on factors favouring suspension. It failed to address guidance identifying deliberate harm, false employment history and practice in breach of restrictions as serious concerns difficult to remediate. It gave excessive weight to personal mitigation and insufficient weight to the impact on public confidence.
6. The Committee wrongly found that notification to the Trust was unnecessary. Although the Registrant worked through Day Webster, she was working for the Trust and was required to provide it with the interim order. The Committee also failed to decide whether the admitted breach of the restriction to work only for specified agencies amounted to misconduct. These errors supplied additional reasons why suspension was insufficient.
7. Given that the maximum 12-month suspension had already been imposed, remittal would serve no useful purpose. The only appropriate sanction was striking off.

1. High Court (Administrative Court): allowed the Professional Standards Authority’s appeal under section 29 of the National Health Service Reform and Health Care Professions Act 2002; quashed the 12-month suspension and substituted a striking-off order.
2. Fitness to Practise Committee of the Nursing and Midwifery Council: on 17 January 2023 found misconduct and impairment but imposed a 12-month suspension.