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

An appeal by the Professional Standards Authority against a professional disciplinary sanction is a review, not a rehearing. The court should respect the specialist tribunal’s evaluative judgment, but must intervene where the tribunal applies the wrong principle, reaches a decision outside the range of reasonable outcomes, or gives inadequate reasons.

At sanction stage, the tribunal must identify and assess aggravating features, even where the same facts were relevant to misconduct or impairment. In sexual-misconduct cases, predatory targeting, persistence after refusal, victim vulnerability, emotional harm and indirect patient-safety risks may aggravate seriousness. Where guidance points towards striking off, a lesser sanction requires careful, substantial and case-specific justification. An absence of further misconduct does not necessarily reduce risk where deep-seated attitudinal concerns and lack of insight remain.

The Professional Standards Authority referred to the High Court a decision of the Nursing and Midwifery Council’s Fitness to Practise Committee under section 29(4) of the National Health Service Reform and Health Care Professions Act 2002. The Committee found that Ahmad Shah had committed repeated sexually motivated harassment of two colleagues and that his fitness to practise was impaired. It imposed a 12-month suspension order with review.

The Authority contended that the sanction was insufficient because the Committee failed to assess the full seriousness of the misconduct, the Registrant’s attitudinal concerns, lack of insight and remorse, and the risk of repetition. The central issues were whether the sanction decision was wrong or procedurally irregular, whether fresh evidence should be admitted, and whether the matter should be remitted.

1. Fresh evidence. The Registrant’s post-hearing reflective statement, testimonials and training certificates were refused. The principles in Ladd v Marshall remained relevant. The evidence could have been produced at the original hearing, its credibility could not be tested by the appellate court, and the testimonials and certificates had limited probative value. Updating material is generally for a review hearing or a fresh rehearing, not an appeal on the original evidence.
2. Scope of review. An Authority appeal under section 29 is by way of review. The court must accord appropriate respect to the specialist tribunal, particularly on evaluative and multifactorial decisions. It may nevertheless intervene where there is an error of principle, the decision is outside the proper range of reasonable outcomes, or inadequate reasons amount to a serious procedural irregularity.
3. Aggravating features. The Committee was required to consider aggravating features at sanction stage, even if the relevant facts had already informed misconduct or impairment. The matters requiring consideration included the deliberate predatory targeting of isolated colleagues, persistence after express rejection, the possible commission of sexual assault, the known vulnerability of one colleague, emotional harm, and indirect risk to patients arising from an unsafe working environment. Considering these matters would not impermissibly double count the charge: disciplinary sanction guidance does not prescribe fixed penalties in the manner of criminal sentencing guidelines.
4. Mitigation and sanction guidance. The Committee should have treated the Registrant’s harmful and continuing attitudinal concerns towards women as deep-seated for the purposes of the NMC guidance. His previous absence of fitness-to-practise referrals should therefore not have been treated as significant mitigation. Four indicative features supporting suspension were engaged only in part: the misconduct was not a single incident, insight was absent, and a real risk of repetition remained. The Committee failed to explain adequately why striking off was disproportionate and suspension sufficient. Its reliance on possible future remediation and four years without further complaints was contradictory and amounted to unsupported wishful thinking.
5. Disposition. The appeal was allowed on all three grounds. The sanction decision was quashed, and the issue of sanction was remitted for redetermination by a fresh panel.

• High Court (Administrative Court): appeal under section 29 of the National Health Service Reform and Health Care Professions Act 2002 allowed on Grounds 1, 2 and 3; the NMC panel’s sanction decision was quashed and the issue of sanction remitted to a fresh panel.
• NMC Fitness to Practise Committee: on 18 July 2024, imposed a 12-month suspension order with review after finding misconduct, impairment and sexually motivated harassment proved.