Professional Standards for Health And Social Care (PSA) v Nursing And Midwifery Council (NMC) & Anor

Factual and Procedural Background

This appeal concerns a decision by the Nursing and Midwifery Council (NMC) relating to allegations against a registered nurse (the Second Respondent) regarding non-accidental injuries sustained by her infant child (Baby A). The Professional Standards Authority for Health and Social Care (the PSA) appealed the NMC's Conduct and Competence Committee decision that there was no case to answer on one of the charges alleging the nurse’s fitness to practise was impaired by misconduct.

The relevant events began in late 2013 and early 2014 when the nurse worked agency shifts and then returned to substantive employment. Baby A was born by caesarean section in January 2014. Over several months, bruises and serious injuries were reported on Baby A, with concerns raised by health visitors and medical professionals. A Serious Case Review and an NHS Trust investigation report documented these events.

A Family Court conducted a 12-day fact-finding hearing in December 2014, concluding that both parents were potential perpetrators and had failed to protect Baby A. The police investigation later decided not to pursue criminal charges due to insufficient evidence. The nurse resigned from her employment in May 2015, denying the allegations.

The NMC initiated fitness to practise proceedings. The Case Examiners found there was a case to answer regarding the nurse’s responsibility for non-accidental injuries to Baby A. However, at the Committee hearing in May 2017, the NMC offered no evidence on this charge, and the Committee accepted a submission of no case to answer, dismissing the charge. The PSA appealed this decision under section 29 of the National Health Service Reform and Health Professions Act 2002.

Legal Issues Presented

1. Whether the NMC was correct in deciding to offer no evidence on the charge that the nurse was responsible for non-accidental injuries to Baby A.
2. Whether the Conduct and Competence Committee was correct to accept a submission of no case to answer without hearing any evidence.
3. Whether the NMC and Committee properly exercised their statutory duties in investigating and adjudicating the allegations, including the adequacy of evidence gathering.
4. The extent to which the court should give weight to the Committee’s decision on appeal under section 29 of the 2002 Act.

Arguments of the Parties

Appellant's Arguments

• The NMC failed to properly investigate the allegations and did not make sufficient efforts to obtain relevant evidence, including the Family Court judgment and medical records.
• The NMC wrongly advised the Committee that it could accept a submission of no case to answer without hearing evidence and at the instigation of the NMC.
• The NMC presented a partial and inaccurate picture to the Committee, omitting serious injury details and the significance of the Family Court findings.
• The Committee’s decision was legally flawed and no reasonable body could have concluded there was no case to answer based on the evidence available.
• The NMC’s approach undermined public confidence by failing to properly investigate and present the case.

Respondent's Arguments

• The decision that there was no case to answer was open to the Committee, even if some findings along the way were not.
• Some submissions suggested mitigating factors or questioned the timing and nature of the injuries, but these did not negate that a case to answer existed.
• The respondent denied the allegations and contended that the Family Court findings were based on evidence given by health professionals who had lied on oath.
• The NMC’s minimal evidence and decision to offer no evidence was appropriate given the circumstances.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the procedural and evidential history, focusing on the NMC’s handling of the investigation and the Committee hearing. It found that the NMC failed to make adequate efforts to obtain critical evidence, including the Family Court judgment and medical records, despite their clear relevance.

The court identified multiple inaccuracies and misrepresentations in how the NMC presented the case to the Committee. The NMC incorrectly advised that the Committee could accept a submission of no case to answer without hearing evidence and at the NMC’s instigation, which was contrary to the Rules governing fitness to practise hearings.

The Committee was deprived of essential information about the nature, timing, and seriousness of Baby A’s injuries, as well as the significance of the Family Court’s findings. The legal assessor gave incorrect advice by suggesting the Committee had no option but to find no case to answer.

The court emphasized that the NMC’s passive and superficial approach to evidence gathering failed to uphold the public interest in thorough investigation and maintaining confidence in the regulatory process. The NMC’s erroneous conclusion that it was disproportionate or unfeasible to obtain further evidence was unjustified.

Given these failures, the court held that the decisions to offer no evidence and to find no case to answer were legally flawed and could not be sustained. The court underscored that the only lawful decisions would have been to offer evidence and to find that there was a case to answer.

Holding and Implications

The court allowed the appeal. It quashed the NMC’s decision to offer no evidence on the relevant charge and the Committee’s decision that there was no case to answer.

The case was remitted to the NMC with directions to:

• Reconsider whether to gather further evidence in support of the charge;
• If further evidence gathering is pursued, to use best endeavours to obtain that evidence;
• Present evidence to the Committee on the charge;
• The Committee is then to rehear the charge particulars when the NMC has complied with these directions.

The NMC is also free to reformulate the charge if considered appropriate in light of the evidence. The decision directly affects the parties by requiring renewed investigation and adjudication but does not establish new legal precedent beyond the reaffirmation of established procedural principles.