Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council & Anor

Factual and Procedural Background

The Appellant, the Council for Healthcare Regulatory Excellence (CHRE), referred the decision of a Conduct and Competence Committee (the Committee) of the Nursing and Midwifery Council (NMC) dated 21 April 2010 to this Court. The Committee had found the Respondent, a registered nurse and midwife (the Registrant), guilty of misconduct but determined that her fitness to practise was not impaired. The CHRE appealed this decision as unduly lenient, supported by the NMC, while the Registrant contended the Committee’s decision was reasonably open to them and should not be interfered with.

The Registrant became a registered nurse in 1983 and a registered midwife in 1986, working for an NHS Foundation Trust since 1986 and becoming a Sister in 2002. Between 2006 and 2007, she was employed as a Midwifery Sister and Audit Lead Midwife at a University Hospital in Essex.

Three complaints were made against the Registrant by a former patient, a junior midwife colleague, and the NHS Trust employing her. Following investigation, the matter was referred to the Committee in November 2007, and the Registrant was suspended by Interim Order due to the seriousness of the charges and public protection concerns.

The fact-finding hearing on five charges took place between July and December 2009. The charges concerned events over approximately 20 months, involving allegations of failure to assist a junior colleague, bullying and harassment, failure to provide appropriate care to a patient who had lost her baby in utero, improper supervision and record-keeping regarding a birth and death of a baby, and failure to comply with academic requirements during supervised practice.

The Committee found most charges proved except for some allegations concerning academic requirements and refusal of a second request to perform a vaginal examination. Following the fact-finding, the Committee considered impairment of fitness to practise in April 2010, hearing further evidence from the Registrant, who described efforts at reflection, rehabilitation, and attending courses. The Committee ultimately found misconduct but decided the Registrant’s fitness to practise was not impaired.

Legal Issues Presented

1. Whether the Committee’s decision that the Registrant’s fitness to practise was not impaired was unduly lenient and manifestly inappropriate.
2. Whether the Committee erred in its approach by applying a narrow "three-fold test" from Cohen without adequate regard to wider public interest considerations.
3. Whether the Committee failed to properly assess the Registrant’s insight, remediation, and likelihood of repetition of misconduct.

Arguments of the Parties

Appellant's Arguments

• The Committee misinterpreted the decision in Cohen as a strict legal test rather than a set of relevant factors, failing to consider public interest adequately.
• The Committee’s decision on fitness to practise was clearly wrong given the serious, prolonged misconduct and the Registrant’s denial at fact-finding stage.
• The Committee’s reasons for finding no impairment were unsustainable and the decision was unduly lenient.

Respondent's Arguments

• The Committee was entitled to apply the Cohen test as the appropriate legal framework.
• The Committee properly considered all relevant factors, including public interest, and observed a profound change in the Registrant’s attitude and fitness to practise.
• The evidence of rehabilitation and positive reports from senior colleagues justified the Committee’s conclusion.

NMC's Arguments

• Supports the CHRE’s appeal, submitting the Committee failed to have proper regard to the serious and prolonged nature of misconduct and public interest.
• Submits the Committee’s approach was too narrow and did not take into account the wider impact on public confidence and regulatory function.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed review of the Committee’s findings and approach to the issue of impairment of fitness to practise. It acknowledged the established statutory framework under Section 29 of the NHS Reform and Health Professions Act 2002 and the judicial guidance from leading cases, particularly Cohen and Ruscillo.

The Court identified a fundamental error in the Committee’s approach: the Committee treated the three-fold test from Cohen as a strict legal test determinative of impairment, rather than a set of relevant factors to be balanced alongside wider public interest considerations. The Committee failed to explicitly consider or give substantial weight to the need to protect the public, maintain public confidence in the profession, and uphold proper professional standards.

While the Committee recognized the seriousness of the misconduct at the misconduct stage, it omitted these considerations when assessing impairment. This omission was stark and constituted a significant error, especially given the serious and persistent nature of the misconduct, which involved bullying, harassment, insensitivity to vulnerable patients, and falsification of records.

The Court further scrutinized the Committee’s acceptance of the Registrant’s evidence of insight and remediation. It found the Committee uncritically accepted the Registrant’s assertions despite her prior vigorous denials and the absence of medical evidence to support claims of serious illness that purportedly prevented remediation between November 2007 and June 2009. The Committee’s reliance on the Registrant’s demeanor and incomplete rehabilitation efforts was considered insufficient.

The Court noted the Committee’s failure to adequately analyze why the Registrant behaved as she did during the period of misconduct and found their conclusion that the behaviour was remediable and had been remedied was unsupported by reasoned analysis.

Given the seriousness, duration, and nature of the misconduct, the Court concluded the Committee’s decision that the Registrant’s fitness to practise was not impaired was manifestly inappropriate and unduly lenient. The Court emphasized that a finding of no impairment in such circumstances would amount to a complete acquittal despite serious misconduct, undermining public confidence.

Holding and Implications

The Court ALLOWED THE APPEAL of the Council for Healthcare Regulatory Excellence.

The Court substituted the Committee’s decision with a finding that the Registrant’s fitness to practise is impaired. The case is remitted to a differently constituted Committee for reconsideration of sanction in light of this finding.

The direct effect is that the Registrant’s fitness to practise is now formally recognized as impaired, requiring appropriate regulatory action. No new legal precedent was established; rather, the Court reinforced the proper application of existing legal principles, particularly the necessity of considering public interest and confidence in fitness to practise determinations.