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

On a statutory appeal concerning professional discipline, the High Court may intervene where a regulatory panel’s sanction is wrong or unjust because of a serious procedural or other irregularity. The court must respect the panel’s evaluative judgment, but may reassess sanction where material errors affect the analysis.

Dishonesty towards an employer, concealment of regulatory conditions and practice in breach of those conditions may justify striking off, but do not automatically require it. The panel must assess the particular circumstances, including the nature, frequency and duration of the breach, the registrant’s history, remorse and insight, personal circumstances, and the risk of repetition. A short-lived breach of a supervision condition may be materially less serious than prolonged practice while suspended or practice at a prohibited level.

The Professional Standards Authority appealed under section 29 of the National Health Service Reform and Health Care Professions Act 2002 against a Nursing and Midwifery Council Fitness to Practise Committee decision.

The Committee found that the registrant had dishonestly concealed parts of her employment history, an employer investigation and NMC conditions of practice. It also found that she had worked one shift without the required supervision. It imposed a six-month suspension order with review. The Authority argued that striking off was the only lawful sanction, alternatively that material errors and inadequate reasons required intervention. The NMC conceded the appeal.

1. Appeal allowed and sanction remitted. The Court did not substitute a striking-off order. Both suspension and striking off remained potentially available sanctions, so the matter had to be reconsidered by the regulator.

2. Under section 29 of the National Health Service Reform and Health Care Professions Act 2002, read with CPR rule 52.21(3), the Court may intervene if the regulatory decision was wrong or unjust because of a serious procedural or other irregularity. It should ordinarily respect specialist evaluative judgment, but may reassess sanction where the panel has made a material error or failed properly to apply the relevant guidance.

3. The Committee erred by concluding that none of the serious dishonesty categories in the NMC Sanctions Guidance applied. The registrant obtained work and remuneration through dishonesty involving concealment of employment history, an investigation, regulatory conditions and the absence of supervision. That constituted personal financial gain arising from a breach of trust. The deception was also premeditated or systematic.

4. The Committee also erred in finding that working unsupervised was not dishonest and that the conduct raised no public-protection issue. Knowledge of the supervision condition, combined with working despite it, made the conduct objectively dishonest by ordinary standards. Deliberate practice in disregard of regulatory conditions may create an indirect risk to patient safety because the conditions were imposed for a protective purpose.

5. Those errors did not make striking off inevitable. The seriousness of a breach depends on its context. Relevant considerations include the nature of the regulatory order, the number and duration of contraventions, the registrant’s history, remorse and insight, personal circumstances, and the likelihood of repetition. A single shift contrary to a supervision condition was materially different from prolonged practice while suspended or repeated practice at a prohibited level.

6. The appeal was therefore allowed because the decision was wrong. The sanction decision was remitted for reconsideration in light of the Committee’s existing findings and the findings which it should have made.

• High Court (Administrative Court): allowed the Authority’s section 29 appeal against the NMC Committee’s sanction decision and remitted sanction for reconsideration. The Court did not substitute a striking-off order.