Newsletters Professional Discipline 27th Feb 2018

PSA v NMC and X [2018] EWHC 70 (Admin)

The NMC made a successful application to drop an allegation at the start of the substantive hearing. It did so prior to opening the case or presenting any evidence – essentially presenting the panel with a fait accompli. On an appeal from the Professional Standards Authority (“PSA”), the court savaged the NMC cavalier approach both to the investigation and presentation of this matter. By doing so in such stark terms, this court has effectively curtailed the NMC’s pragmatic attempts to dispose of cases without the expense of a full hearing.

The facts

Concerns had arisen regarding X and her new born baby. Over the course of several weeks, health visitors and others noted Baby A had several injuries. An X ray was eventually undertaken which identified multiple rib and leg fractures.  A hearing before the Family Court lasted 12 days and concluded that both parents were potential perpetrators, and both had failed to protect their baby. A psychological assessment of X also raised concerns regarding her fitness to practise. X’s employer summarised these findings in its Serious Case Review and referred X to a disciplinary hearing, and to the NMC.

As part of its investigation the NMC wrote to the court and asked for a transcript of the Family Court proceedings, a copy of the judgment and the psychiatric report. The court replied indicating that in order to comply with the request there must be a formal application and hearing, with the other parties on notice. No such application was made. Indeed, no other steps were taken to obtain this evidence.

The NMC investigation report summarised the evidence for the Case Examiners. In doing so it claimed – wrongly – that this evidence could only be obtained by a court order and with the consent of all parties. Having referred to the “attempts” made to obtain such evidence, when in fact there was only one “attempt”, it concluded it was not feasible or proportionate to make further efforts. Of course, even if the NMC was correct about needing the consent of the parties, no efforts whatsoever had been made to obtain consent. The report suggested the Case Examiners find there was no case to answer. In doing so it wrongly claimed the allegation had no bearing on patient care and placed reliance on the fact X had not received a criminal conviction.

Despite this recommendation, the Case Examiners did refer the matter to a Fitness to Practise Panel. The NMC subsequently convened a hearing and made an application to offer no evidence in respect of this charge. It invited the panel to exercise its discretion to depart from the standard procedure for such a hearing, and hear an application for no case to answer at the start of proceedings. The NMC lawyer noted the case concerned “non-accidental injuries” to Baby A and highlighted the fact they had not been able to obtain evidence from the Family Court. The panel acceded to the application. It uncritically accepted the submission that it was disproportionate to apply to the Family Court. It commented also that it was unlikely on the evidence it could conclude whether X or her partner caused Baby A’s injuries – even though the charge alleged either causing injury or failing to protect A.

The judgment

On appeal, Laing J accepted that it must be open to the NMC to offer no evidence in rare cases. However, r 24(6) requires the NMC to open the case and r 24(7)-(8) permits an application of no case to answer only after the NMC has presented its evidence. A general discretion under r 24 to alter its procedure in an appropriate case does not give the NMC carte blanche to disregard these particular provisions and principles. She noted:

it is especially important, if the NMC considers that it is appropriate to offer no evidence, that if fully opens the case, so that the Committee is able to make a decision, informed by a sufficient knowledge of the facts, whether it is appropriate for the NMC to offer no evidence, or whether it should require the NMC to reconsider that view and try to obtain more evidence

In essence, it was for the Committee to decide if a case should be dropped, not an NMC official. In this instance the Committee proceeded without a proper understanding of the underlying facts – for example, what the injuries were, and the accepted fact the Family Court had found the injuries were non-accidental. It did so on the basis of erroneous legal advice that it did not have to hear the evidence first before dropping a case. It did not appreciate there were no medical records because the NMC had not tried to get them. It was wrong to assume it was disproportionate to seek the Family Court’s documents.

In quashing the decision and remitting it for further investigation, Laing J took the opportunity to record her “unease at the superficial approach” taken to the investigation of this matter. Even without an application to the Family Court, the NMC knew there were relevant medical records. It could have spoken to the professionals involved in the case. No such steps were taken. She commented that the NMC’s approach to its responsibilities:

does not in any way recognise the public interest in the thorough investigation of allegations of misconduct by registrants, and the need to maintain public confidence by investigating such allegations properly”.

Closing cases

Laing J’s criticisms are no doubt fully justified. The case was hopelessly investigated and the attempt to drop it was improper. However, on a wider point, the fact is that once a case is referred to a panel the NMC’s legislation offers no real way for it to be dropped prior to the substantive hearing. There are inevitably cases where new evidence appears after the Case Examiners’ decision which serves to exonerate the registrant, or fatally weaken the case against him. It is in no one’s interests for the matter to be fully opened and all the evidence called before a Committee can drop it. Other regulators allow the matter to be referred back to the Case Examiners to reconsider the matter and close it without recourse to a full hearing. The NMC has no such recourse. The result of this lacuna: a waste of time, stress and money.

Christopher Geering

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