E-Regulator: R (on the application of B) v NMC [2012] EWHC 1264 (Admin)

CASE SUMMARY

Decision date: 15 May 2012

The Nursing and Midwifery Council’s decision to set aside a “no case to answer” determination by the Investigating Committee (IC) was ultra vires and in breach of the registrant’s legitimate expectation.

The Claimant, a registered nurse, applied for judicial review of a decision by the Nursing and Midwifery Council (NMC) to set aside the IC’s determination that there was no case to answer in respect of allegations surrounding the Claimant’s care of Patient A.

In June 2009, the NMC received notification of an investigation into the mistreatment and/or neglect of care home residents.  Allegations against 36 registrants, including the Claimant, were referred to the NMC. 

In March 2011, the NMC’s IC decided that there was no case to answer in respect of the allegations against the Claimant.  They concluded that there was evidence of system failures at the relevant care home and there was insufficient information to suggest that the Claimant was solely responsible for the inadequate care of Patient A. 

In October 2011, the NMC wrote to the Claimant and informed her that they would be asking the IC to review its decision.  In December 2011, the NMC wrote to the Claimant and said that the IC had decided to set aside the decision made by the previous panel.  The IC had referred to the legal authorities cited in the case of R (on the application of Jenkinson) v NMC [2009] EWHC 1111 (Admin), which indicated that a Committee may have a limited power to set aside a previous decision where there had been a “slip or an accidental error”.  The IC decided that the definition of a slip was a “faulty action”, which had occurred in this case.

The Claimant claimed that the NMC’s decision in December 2011 was either ultra vires, or in breach of her procedural and substantive legitimate expectation.

Mrs Justice Lang concluded that the NMC acted unlawfully and beyond its powers in reversing the IC’s decision.  In making this decision it was noted that:

• the IC does not have an inherent jurisdiction to set aside its previous decision, beyond a limited power to correct accidental errors;

• the circumstances in Jenkinson were very different to this case: in Jenkinson the parties agreed that the NMC’s earlier decision should not stand and the claimant stood to benefit from the rescinding of the previous decision – the opposite outcome to this case;
• although the exercise of judgment in this case may have been flawed, it could not properly be characterised as a “slip” nor was it a decision that was so obviously mistaken that there was no room for uncertainty. 

Mrs Justice Lang also concluded that the NMC breached the Claimant’s legitimate expectation.  In making this decision, she accepted submissions made by the Claimant, including that:

• the letter to the Claimant stating that there was no case to answer was a clear and unambiguous representation and it was reasonable for the Claimant to have assumed that this meant that no further action would be taken;
• the benefit promised to the Claimant was substantive;
• the decision was disproportionate because the NMC could not show that it (i) was no more than necessary to achieve the legitimate aim and (ii) struck a fair balance between the Claimant’s rights and the wider public interest.  

This case demonstrates that there are limited circumstances in which a Regulator can reverse a previous IC decision that there was no case to answer. 

By Lucy Alicea