The Professional Standards Authority v The Nursing and Midwifery Council & Anor

On a reference under section 29 of the National Health Service Reform and Health Care Professions Act 2002, a failure by a regulator to place relevant evidence before a disciplinary panel may constitute a procedural irregularity. Where the omission is serious and the evidence might have made a significant difference to the result, the resulting decision may be unjust and liable to be quashed.

At a half-time stage, the panel must consider the evidence in the round and at its highest. It must not treat an unclear account of sexual assault as inherently unreliable, or infer reasonable belief in consent merely from the absence of an express refusal. The absence of consent may itself support an inference that reasonable belief in consent was lacking, particularly where there is no evidence that the accused took steps to ascertain consent.

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 of the Nursing and Midwifery Council concerning allegations that a nurse had engaged in non-consensual sexual activity with a colleague.

The Panel excluded two items of evidence, found no case to answer on several allegations, treated admitted or proved conduct as consensual, found misconduct in relation to one incident, and concluded that current impairment was not established. The appeal raised procedural irregularity through alleged under-prosecution, errors in the half-time approach, and failure properly to assess impairment.

1. The appeal was allowed on Grounds 1 and 2. The Panel’s decision was quashed and the case was remitted to a differently constituted panel for fresh consideration.

2. Under [2004] EWCA Civ 1356, the court may intervene where a disciplinary tribunal’s decision is wrong or where serious procedural irregularity makes it unjust. A regulator’s failure to present relevant evidence may amount to such an irregularity. The omission is sufficiently serious where the evidence might have made a significant difference, assessed in the context of public protection.

3. The failure to secure the attendance of two relevant witnesses, whose evidence could have supported the complainant’s account of the most serious incident, was a serious procedural irregularity. The possible prejudice to the registrant from a further hearing had to be balanced against the public-protection injustice arising from an inadequately informed decision. In this context, the latter generally took precedence.

4. The Panel’s half-time rulings were wrong. Applying R v Galbraith (1981) 73 Cr App R 124, the evidence had to be considered in its entirety and at its highest. Issues depending on credibility or competing inferences should ordinarily be left for determination after the evidence had been heard.

5. The Panel wrongly treated the complainant’s lack of a clear and coherent recollection as demonstrating unreliability. It also failed to consider that evidence of non-consent could itself bear on whether the registrant could reasonably have believed that there was consent. The absence of an explicit refusal did not, without more, establish reasonable belief in consent, and the Panel failed to consider whether the registrant had taken steps to ascertain consent.

6. The Panel also wrongly concluded that there was no evidence that the registrant had placed his penis in the complainant’s mouth. The complainant’s evidence was evidence capable of supporting the allegation, even though it had followed a leading question. The same error occurred in relation to the corresponding allegation arising from the later incident.

7. Ground 3 would not, standing alone, have been upheld because the assessment of current impairment was evaluative and entitled to appropriate weight. The quashing of the decision on Grounds 1 and 2 nevertheless required a fresh assessment of impairment by the new panel.

The judgment describes an appeal under section 29 of the National Health Service Reform and Health Care Professions Act 2002 from a Fitness to Practise Committee decision dated 6 June 2025. The appeal was allowed on Grounds 1 and 2, the decision was quashed, and the matter was remitted to a differently constituted panel.