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

A professional disciplinary panel must treat applicable sanctions guidance as an authoritative steer. It may depart from that guidance, but must give clear, substantial and specific reasons. A panel must address the seriousness of the misconduct, the practitioner’s insight and remediation, risk of repetition, and the statutory objectives of public protection, public confidence and professional standards.

Where the guidance identifies striking-off as appropriate and its relevant factors are present, a decision allowing registration to lapse with impairment is unlawful if it gives weight chiefly to the practitioner’s wish to leave the profession and fails to explain how the public-interest objectives are met. The appellate court may quash the decision and substitute the sanction that was reasonably open to the panel.

The Professional Standards Authority appealed under Part V of the Nursing and Midwifery Order 2001 against a Fitness to Practise Committee decision concerning a nurse whose fitness to practise remained impaired.

The panel had allowed an existing suspension order to expire, permitting the nurse’s registration to lapse with a recorded finding of impairment. The Authority argued that the panel had failed properly to apply the NMC guidance on removal from the register where a substantive order is in place, had failed to give adequate reasons for departing from it, and had selected a sanction outside the reasonable range.

The central issues were whether the decision was wrong or procedurally defective, and whether the court should quash it, remit the matter, or substitute a striking-off order.

1. Appeal allowed. The panel’s decision was quashed and the court substituted an order striking the respondent from the Register. The case was not remitted because striking-off was the only sanction reasonably open to the panel.
2. Under NHS Reform and Health Care Professions Act 2002, the Authority’s appeal jurisdiction and the court’s powers extended to the final decision allowing registration to lapse. The court applied the appellate approach in Bawa-Garba v GMC and Council for the Regulation of Health Care Professionals v General Medical Council & Ruscillo: intervention was justified where the evaluation was wrong in principle or fell outside the bounds of reasonable decision-making.
3. The NMC guidance was an authoritative steer on proportionality. A panel had to have proper regard to it and apply it according to its terms unless it had sound reasons for departing from it. Any departure required clear, substantial and specific case-specific reasoning.
4. The guidance identified striking-off considerations including limited insight, negligible progress, harmful deep-seated attitudinal problems and risk of repetition. The panel accepted those features but nevertheless allowed lapse with impairment. It did not adequately explain how public confidence and proper professional standards could be maintained without striking-off.
5. The panel gave undue weight to the respondent’s stated wish to leave nursing and failed adequately to address the seriousness of the misconduct, the absence and deterioration of insight, continuing denial, failure to engage meaningfully, and inclusion on the DBS Barred List arising from the same behaviour. That was a fundamental error.
6. The distinction between lapse with impairment and striking-off was legally significant. Following lapse, a readmission application was determined by the Registrar under the Nursing and Midwifery Council (Education, Registration and Registration Appeals) Rules 2004; following striking-off, restoration was referred to the Fitness to Practise Committee, which had to consider the circumstances leading to the order and whether the applicant was a fit and proper person.

• High Court (Administrative Court): allowed the Authority’s appeal against the Fitness to Practise Committee decision of 22 November 2024. The decision was quashed and a striking-off order substituted.