Jatta v Nursing & Midwifery Council

Factual and Procedural Background

The appeal concerns the legal obligation to make all reasonable efforts, in accordance with relevant rules, to serve notice of a disciplinary hearing on the person subject to the hearing, as a condition for proceeding in the respondent's absence. The respondent, a nurse registered with the Nursing and Midwifery Council ("the Council"), faced disciplinary proceedings before the Conduct and Competence Committee following allegations related to a criminal conviction for offences involving false representations concerning medicinal products. The respondent was notified generally by letter dated 28 April 2008. A hearing was held on 26 August 2008 in his absence, resulting in a finding that his fitness to practice was impaired and an order striking him off the register.

The respondent appealed to the Administrative Court. The judge rejected two grounds of appeal but allowed the appeal on the basis that the conditions for proceeding in the respondent's absence had not been satisfied, ordering a new hearing and granting permission to appeal, despite this being a second appeal. The appeal before the current court concerns the correctness of that decision.

Legal Issues Presented

1. What constitutes "all reasonable efforts" to serve notice of a disciplinary hearing on a registrant under the Nursing and Midwifery Council rules?
2. Whether the disciplinary hearing may properly proceed in the absence of the registrant when notice has been sent to the registered address but not to any other known contact address, including email.
3. Whether the omission to send an email alerting the registrant to the hearing date or to the existence of the notice of hearing vitiates the decision to proceed in the registrant's absence.

Arguments of the Parties

Respondent's Arguments

• The respondent contended that he had indicated availability for a hearing in September and assumed that the Council would not hold a hearing before then without notifying him otherwise.
• He argued that the Council had a duty to respond to his request and to notify him by email of the hearing date or the existence of the notice of hearing, especially since he had provided an email address and was out of the country.
• He claimed that the sending of notice solely to his registered address, which he had vacated, was a mechanical process of no real value and did not constitute proper service.
• The respondent sought only an opportunity to present mitigation evidence and argued that the failure to alert him by email was a procedural irregularity that invalidated the decision to proceed in his absence.

Appellant Council's Arguments

• The Council submitted that the respondent could not assume that the hearing would be postponed without explicit confirmation and that he had a duty to keep his address updated.
• The Council asserted that sending full notice of hearing by email was not permitted due to confidentiality concerns, and that the rules required service by post or recorded delivery to the registered or last known address.
• They argued that all reasonable efforts to serve notice had been made in accordance with the rules by sending the notice to the registered address, even though it was known not to be the respondent’s current address.
• The Council maintained that the panel acted properly and conscientiously in deciding to proceed in the respondent’s absence after being satisfied that notice had been duly served under the rules.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court analysed the relevant Nursing and Midwifery Council rules governing service of notice and the conduct of disciplinary hearings. Rule 21(2)(a) requires the committee to be satisfied that all reasonable efforts have been made to serve notice of the hearing in accordance with the rules before proceeding in the registrant's absence. The rules specify that notice must be served by postal or recorded delivery to the registered or last known address; email service is not provided for.

The court found that the Council had complied mechanically with these rules by sending the notice to the registered address, despite knowing it was not a useful address for the respondent. The court acknowledged that the respondent had engaged with the Council by providing an email address and requesting a hearing date in September, but held that the rules did not require the Council to send any email alerting him to the hearing date or the existence of the notice of hearing.

The judge below had held that omission to send an email constituted a procedural irregularity. However, the court found that such an additional step was not required by the rules and could not be considered a reasonable effort to serve notice under them. The panel had proper evidence of service by post and was entitled to proceed in the respondent’s absence under rule 21(2)(b). The court further held that the panel’s discretion to proceed rather than adjourn was lawful and properly exercised.

The court rejected the judge’s added requirement that the Council should have sent an email, emphasizing the importance of adhering strictly to the rules as drafted. Although sympathetic to the respondent’s position, the court concluded that the procedural irregularity identified by the judge was not supported by the rules.

Holding and Implications

The court ALLOWED THE APPEAL, overturning the lower court’s decision that the hearing should not have proceeded in the respondent’s absence.

The direct effect is that the Council’s decision to proceed with the disciplinary hearing without the respondent present, having served notice in accordance with the rules, is lawful and valid. No new precedent was established beyond clarifying that the rules do not impose a duty to send email notifications beyond the prescribed postal service. The decision underscores the importance of strict compliance with procedural rules governing service of notice in disciplinary proceedings and clarifies the limits of the obligation to make "all reasonable efforts" under those rules.