QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF THE COUNCIL FOR THE REGULATION OF HEALTH CARE PROFESSIONALS||Claimant|
|(1) THE NURSING AND MIDWIFERY COUNCIL|
|(2) MICHELLE KINGDOM||Defendants|
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Miss Claire Strickland (instructed by NMC) appeared on behalf of the First Defendant
Mr Simon Wilton (instructed by RCN Legal Services) appeared on behalf of the Second Defendant
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"We should add that we regret that we have felt obliged to reach this decision. Much of the evidence which was given in this case related to the alleged dishonesty of the Registrant, but this did not form part of the charges. We were not therefore able to fully explore the issues of the Registrant's alleged dishonesty."
Having so directed itself, the Committee made no finding of misconduct in relation to any of the charges.
"(4) If the Council considers that-
(a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of such a finding), or as to any penalty imposed, or both, or
(b) a relevant decision falling within subsection (2) should not have been made
and that it would be desirable for the protection of members of the public for the Council to take action under this section, the Council may refer the case to the relevant court."
The relevant court is the High Court, and cases brought pursuant to section 29 are brought to the Administrative Court.
"(7) If the Council does so refer a case-
(a) the case is to be treated by the court to which it has been referred as an appeal by the Council against the relevant decision (even though the Council was not a party to the proceedings resulting in the relevant decision), and
(b) the body which made the relevant decision is to be a respondent."
In the present case, the first respondent is the Nursing and Midwifery Council, who is represented in court by Miss Strickland. The Council do not oppose the relief sought, and Miss Strickland was here to assist the court by her presence.
"(8) The court may-
(a) dismiss the appeal,
(b) allow the appeal and quash the relevant decision,
(c) substitute for the relevant decision any other decision which could have been made by the committee or other person concerned, or
(d) remit the case to the committee or other person concerned to dispose of the case in accordance with the directions of the court..."
It is the power under section 29(8)(d) which the appellant invites the court to exercise.
"Where before the hearing begins it appears to the chairman of the Conduct Committee, or at any stage during the hearing it appears to the Conduct Committee, that a Notice of Inquiry is defective, she or it shall cause the Notice to be amended unless it appears that the required amendment cannot be made without injustice, or if she or it considers that the circumstances in which an amendment is made so require, she or it may direct that the hearing shall be postponed or shall not take place."
"The role of the Court when a case is referred is to consider whether the disciplinary tribunal has properly performed that task so as to reach a correct decision as to the imposition of a penalty. Is that any different from the role of the Council in considering whether a relevant decision has been 'unduly lenient'? We do not consider that it is. The test of undue leniency in this context must, we think, involve considering whether, having regard to the material facts, the decision reached has due regard for the safety of the public and the reputation of the profession."
"The procedures for disciplinary proceedings under the various statutes referred to in section 29(1) of the Act are not identical. In general they involve a preliminary investigation of conduct of the practitioner of which complaint has been made. If it is decided to bring disciplinary proceedings, a charge will be proffered which alleges the facts relied upon as demonstrating professional misconduct ... The disciplinary tribunal should play a more proactive role than a judge presiding over a criminal trial in making sure that the case is properly presented and that the relevant evidence is placed before it."