Factual and Procedural Background
This appeal arises from decisions of the Conduct and Competence Committee of the Nursing and Midwifery Council ("NMC") concerning a registered nurse ("Appellant"). The committee found ten allegations of misconduct proved against the Appellant and issued an order striking her off the register, although the order currently in force was an interim suspension. The core procedural issue concerns whether the committee properly exercised its discretion to proceed with the hearing in the Appellant's absence after the notice of hearing sent by recorded delivery to her registered address was returned undelivered and unopened.
In August 2007, the Appellant applied for a nursing position using an NHS e-recruitment form, providing two referees, one of whom was found to be fictitious and the other not a nurse. The committee found that the references were fabricated by the Appellant herself.
Up to 31 October 2009, the Appellant resided at her registered address ("Lidgate Road"). The NMC sent the notice of hearing by Royal Mail recorded delivery and first class post to that address. The recorded delivery notice was returned unopened with a "Not called for" endorsement. The Appellant swore that she never received any notice and moved to a new address after 31 October 2009. She did not attend or respond to the hearing held on 7-9 December 2009.
The committee proceeded with the hearing in her absence, relying on the evidence of service and the Appellant's failure to respond, and subsequently struck her off the register.
Legal Issues Presented
- Whether the Conduct and Competence Committee properly exercised its discretion to proceed with the hearing in the Appellant's absence after the notice of hearing was returned undelivered.
- Whether the service of the notice of hearing complied with the Nursing and Midwifery Council (Fitness to Practise) Rules 2004.
- Whether the committee's decision to strike off the Appellant was appropriate and proportionate given the findings of misconduct.
Arguments of the Parties
Appellant's Arguments
- The Appellant contended that she never received the notice of hearing and was unaware of any delivery attempts.
- She suggested that the committee failed properly to explore or consider her intention to attend, as indicated by responses in the case management form.
- She argued that the committee's decision to strike her off was disproportionate.
Respondent's Arguments
- The NMC submitted that service of the notice complied with the rules by recorded delivery and first class post to the registered address.
- They argued that the committee had discretion to proceed in the Appellant's absence once satisfied of service.
- The NMC contended that proceeding was in the interests of justice given the attendance of witnesses and the Appellant's failure to request adjournment.
- The NMC maintained that striking off was the only proportionate sanction for the misconduct found.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Yusuf v The Royal Pharmaceutical Society of Great Britain [2009] EWHC 867 (Admin) |
Requirement that discretion to proceed in absence be exercised with "utmost caution" |
The court relied on this authority to emphasize the need for careful exercise of discretion before proceeding in a registrant's absence. |
| R v Hayward |
Discretion to proceed in absence must be exercised with great care and only in rare cases |
Quoted to underline the high threshold and careful approach required in exercising discretion to proceed without the party present. |
| R v Jones (Anthony) |
Discretion to commence trial in absence should be exercised with utmost care and caution |
Referenced to stress that tribunals must demonstrate awareness of the gravity of proceeding without the party. |
| Tait v Royal College of Veterinary Surgeons |
Application of criminal law principles about discretion in absence to professional disciplinary proceedings |
Supported the proposition that the same careful approach applies in professional disciplinary contexts. |
| Jatta v Nursing and Midwifery Council [2009] EWCA Civ 824 |
Compliance with service rules and exercise of discretion to proceed in absence |
Confirmed that sending notice to registered address, even if undelivered, can amount to due service; committee entitled to proceed if satisfied of service. |
Court's Reasoning and Analysis
The court identified a two-stage process under rule 21 of the NMC Fitness to Practise Rules: first, whether the notice of hearing was duly served; second, whether the committee properly exercised its discretion to proceed in the Appellant's absence.
Applying the Court of Appeal's decision in Jatta, the court found that despite the recorded delivery envelope being returned unopened, service was effected in accordance with the rules by sending the notice to the registered address by recorded delivery and first class post.
However, the court held that the committee failed adequately to exercise its discretion to proceed in the Appellant's absence. The legal assessor did not provide guidance on the exercise of discretion, and the committee's decision was perfunctory, lacking consideration of the "utmost caution" required by authorities such as Yusuf and R v Jones (Anthony).
The committee did not address contrary indications in the Appellant's case management form suggesting an intention to attend, nor did it adjourn to deliberate on the issue. The sole reason given for proceeding was the Appellant's failure to respond, which was unsurprising given the notice was returned undelivered.
Consequently, the court concluded that the procedural defect was fatal, requiring the appeal to be allowed and the matter to be reheard afresh by the Conduct and Competence Committee.
The court rejected the Appellant's challenges to the handling of witness evidence and the severity of the sanction, finding the committee's findings and sanction appropriate on the merits.
Holding and Implications
The appeal is ALLOWED, the decision of the Conduct and Competence Committee is QUASHED, and the matter is REMITTED for a rehearing before the Committee with fresh notice to the Appellant.
The direct effect is that the prior striking-off order is set aside, and the disciplinary proceedings must be conducted anew with proper exercise of discretion regarding service and attendance. No new precedent is established beyond reaffirming the strict requirements for service and careful exercise of discretion to proceed in absence under the NMC rules and relevant case law.