B, R (on the application of) v The Nursing and Midwifery Council

The NMC’s proceedings are governed by the Nursing and Midwifery Order 2001 (‘the Order’) and the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 (‘the Rules’).

Article 3 establishes “a body corporate known as the Nursing and Midwifery Council”. Article 9 provides that there shall be four committees of the Council, including the IC. By Article 10, the four committees are to be referred to as “the statutory committees” and Article 11 provides that each committee shall have the functions conferred on it by the Order. Schedule 1 to the Order sets out the constitution of the statutory committees.

Article 26(1) provides that the IC shall investigate any allegation referred to it. Where an allegation is referred, it must consider, in the light of the information it has been able to obtain, and any representations made to it, whether, in its opinion, there is a case to answer (Article 26(2)(d)). When the IC reaches a decision as to whether there is a case to answer, it shall notify in writing both the person concerned, and the person making the allegation, of its decision, giving its reasons (Article 26(5)).

If the IC concludes there is no case to answer, it may make a declaration to that effect, at the request or with the consent of the person concerned (Article 26(8)). For the purposes of paragraph (8), the publication of the decision mentioned in paragraph (5), together with the reason for it, may constitute such a declaration.

The Rules set out detailed procedures which the NMC has to follow in considering and determining disciplinary complaints and questions of fitness to practise. Those relating to the IC are in Rules 3 to 7 inclusive. Rule 7 provides as follows:

“Reconsideration of allegation after a finding of no case to answer

7(1) This rule applies where –

(a)

the Investigating Committee has considered an allegation that the registrant’s fitness to practise is impaired and decided that there is no case to answer in respect of that allegation; and

(b)

at any time within three years from service of the notice of decision, the Council receives a fresh allegation about the registrant.

(2)

Where this rule applies, the Investigating Committee may –

(a)

when considering whether or not there is a case to answer in respect of a fresh allegation, take account of the original allegation; and

(b)

may refer both the original allegation and the new allegation to the Conduct and Competence Committee or Health Committee.”

It is apparent from the Order and the Rules that:

The NMC argued that the IC, as a statutory tribunal, had an inherent jurisdiction to set aside its previous decision. However, this proposition is not supported by the authorities.

In Akewushola v. Secretary of State for the Home Department [2000] 1 WLR 2295, the Court of Appeal held that, once it had reached a final decision on an appeal, there was no power enabling the Immigration Appeal Tribunal to rescind or declare its previous decision a nullity. Any error could only be corrected by the High Court. Sedley LJ said, at 2300H:

“But there is a larger issue: can even a full tribunal rescind its own or another tribunal’s decision? I can find no explicit power to do so in the Rules, and I see a number of reasons why no such power should be inferred or implied.

Rule 38 provides:

“Any irregularity resulting from failure to comply with these Rules before an appellate authority has reached its decision shall not by itself render the proceedings void, but the appellate authority may, and shall if it considers that any person may have been prejudiced, take such steps as it thinks fit before reaching its decision to cure the irregularity, whether by amendment of any document, the giving of notice or otherwise.”

The limit in point of time of this power to cure irregularities is thus the point at which a decision is reached. From then on the maximum power must be to correct accidental errors which do not substantially affect the rights of the parties or the decision arrived at. Mr Riza has drawn our attention to a passage in Wade & Forsyth on Administrative Law. 7^th ed. (1994), p.262. Having instanced cases where powers of review are expressly conferred on administrative tribunals, the authors say:

“Even where such powers are not conferred, it is possible that statutory tribunals would have power, as has the High Court, to correct accidental mistakes; to set aside judgments obtained by fraud; and to review a decision where facts subsequently discovered have revealed a miscarriage of injustice.”

The footnote to this sentence cites the slip rule (R.S.C., Ord 20, r.11) and the decision of the Privy Council in Hip Foong Hong v. H. Neotia & Co. [1918] A.C, 888, a case concerning the power of His Britannic Majesty’s Supreme Court for China, sitting at Shanghai, to order a new trial for the admission of fresh evidence in a dispute between two firms of opium merchants encountering difficulties with China’s attempts to ban importation of the drug. For my part I do not think that, slips apart, a statutory tribunal – in contrast to a superior court – ordinarily possesses any inherent power to rescind or review its own decisions. Except where the High Court’s jurisdiction is unequivocally excluded by privative legislation, it is there that the power of correction resides.”

In the current edition of Wade & Forsyth: Administrative Law (10^th ed.) there are two passages which consider the circumstances in which statutory bodies may review their own decisions.

“Decisions

As noted above once a tribunal has announced its decision it has, as a general rule, no power to reconsider it or to reopen the case (Footnote: ¹) unless of course its decision is quashed by the High Court. This applies equally where one of the parties later discovers fresh evidence which might well alter the decision, and in such a case the court has no power to assist by quashing. (Footnote: ²) But there is exceptional power to reopen the case where the tribunal’s decision is given in ignorance that something has gone wrong, e,g. that a notice sent to one of the parties has miscarried. But this power must be exercised sparingly and only where the party prejudiced by the mistake has a reasonable excuse. (Footnote: ³) There are also important statutory exceptions. Social security tribunals have been given wide powers to review their own decisions, and so have employment tribunals. As we have see the 2007 Act introduces a wide power of ‘internal review’ that will enable the First-Tier Tribunal and the Upper Tribunal to set aside earlier decisions in the circumstances specified. A binding decision by a tribunal is res judicata and cannot be relitigated by the same parties. (Footnote: ⁴) ” (p.791-2)

“Revocable and irrevocable action

It may be necessary to determine whether there is power to revoke or modify the decisions or orders of an administrative authority or tribunal. (Footnote: ⁵) The question here is whether the authority itself has power to do this. This is different from the question whether some other authority has power to do so, which may be affected by a statutory provision that the decision ‘shall be final’, as explained elsewhere. (Footnote: ⁶)

In the interpretation of statutory powers and duties there is a rule that, unless the contrary intention appears, ‘the power may be exercised and the duty shall be performed from time to time as occasion requires.’ (Footnote: ⁷) But this gives a highly misleading view of the law where the power is a power to decide questions affecting legal rights. In those cases the courts are strongly inclined to hold that the decision, once validly made, is an irrevocable legal act and cannot be recalled or revised. The same arguments which require finality for the decisions of courts of law apply to the decisions of statutory tribunals, ministers and other authorities.

For this purpose a distinction has to be drawn between powers of a contributing character and powers which, once exercised, are finally expended so far as concerns the particular case. An authority which has a duty to maintain highways or a power to take land by compulsory purchase may clearly act ‘from time to time as occasion requires’. But if in a particular case it has to determine the amount of compensation or to fix the pension of an employee, there are equally clear reasons for imposing finality. Citizens whose legal rights are determined administratively are entitled to know where they stand.

There is a third class of cases where there is power to decide questions affecting private rights but where there is also an inherent power to vary an order (Footnote: ⁸) or power to entertain fresh proceedings and make a different decision. Decisions on licensing applications and other decisions of policy will usually fall into this class, since policy is essentially variable. Thus, decisions on planning applications may be varied at any time if a fresh application is submitted.

There are also cases where a power of review by the body making the decision is expressly given by statute. The social security authorities, for example, have extensive powers to review their decisions on grounds of fresh evidence, change of circumstances, or mere mistakes. (Footnote: ⁹) Powers of much the same kind have been conferred on employment tribunals. (Footnote: ¹⁰) But if it proposes to vary its decision under such a power the tribunal should first hear any party prejudiced. (Footnote: ¹¹) Even where such powers are not conferred, it is possible that statutory tribunals would have power, as has the High Court, to correct accidental mistakes; to set aside judgments obtained by fraud; and to review a decision where facts subsequently discovered have revealed a miscarriage of justice. (Footnote: ¹²) In the absence of such special circumstances the tribunal’s decision is irrevocable as soon as it has been communicated to the parties, even though orally (Footnote: ¹³) and even though the reasons for it remain to be given later. (Footnote: ¹⁴)

A mistake may lead to action being taken upon a wholly wrong basis so that some different action needs to be substituted. This happened where a local education authority agreed to pay the cost of school transport for a girl, supposing that she lived more than three miles from the school and that they therefore had a statutory duty to pay. When it was found that the distance was less than three miles, so that they had a power to pay but no duty, they refused to do so. The Court of Appeal rejected the plea that the original decision was irrevocable, since it was not taken in the exercise of any power to determine a question of legal right and could not affect the duty to exercise discretion when the true facts appeared. (Footnote: ¹⁵)” (p.193-4)

At the hearing before me, the researches of Counsel confirmed that none of the cases cited by Wade & Forsyth at footnote 12 belowsupport the proposition that a tribunal has a power analogous to that of the High Court to reopen proceedings, beyond the limited power “to correct accidental errors which do not substantially affect the rights of the parties or the decision arrived at” (per Sedley LJ in Akewushola).

In R (on the application of Jenkinson) v. The Nursing and Midwifery Council [2009] EWHC 1111 (Admin) Cranston J. cited the passage at p.792 in Wade & Forsyth in support of his conclusion that the NMC Professional Conduct Committee had power to set aside its earlier decision that the clamant had been guilty of misconduct. The misconduct alleged was that the claimant had committed a criminal offence. Subsequently her conviction was set aside by the Court of Appeal. Cranston J. held that there had been a miscarriage of justice and that the earlier decision had been founded on a mistake, namely, that the claimant was guilty of a criminal offence. He went on to hold that the High Court had power to quash the earlier decision.

Applying the relevant legal principles to this case, I do not consider that the IC was entitled to reverse its previous decision, in reliance on the decision in Jenkinson. The circumstances in Jenkinson were exceptional and very different to this case. In Jenkinson the parties were in agreement that the earlier decision of the NMC should not stand, as there was no longer any proper basis for it. As Cranston J. said, if the hearing had taken place after the Court of Appeal had quashed the conviction, there was no room for speculation or uncertainty as to what the outcome would have been. Moreover, in Jenkinson, the claimant stood to benefit from the rescinding of an adverse decision – the opposite outcome to this case.

In this case, the IC’s first decision, though clumsily expressed, was a legitimate finding that there were systemic failures in the way in which the care home was run and therefore there was no realistic prospect of a finding of impairment of fitness to practise on the part of the Claimant. This was an exercise of judgment on the part of the panel. Although the exercise of judgment may have been flawed, it cannot properly be characterised as a “slip” (as the second IC panel described it). In my judgment, slips are “accidental errors which do not substantially affect the rights of the parties or the decision arrived at” (per Sedley LJ in Akewushola). Nor can it be characterised as a “miscarriage of justice” or a decision which was so obviously mistaken that there is now “no room for speculation or uncertainty” as to the appropriate outcome (as in Jenkinson).

Furthermore, I respectfully differ from Cranston J. in his interpretation of Sedley LJ’s judgment in Akewushola. I do not agree that Sedley LJ approved the passage in Wade & Forsyth which suggests that tribunals have inherent powers to rescind their own decisions, in certain circumstances, by analogy with the High Court. On my reading of the judgment, I consider that Sedley LJ was limiting the powers of tribunals to the correction of accidental slips. In my judgment, the correct course is to follow Akewushola not Jenkinson.

For these reasons, I accept the Claimant’s submission that the NMC acted unlawfully and beyond its powers in rescinding and reversing the IC’s decision of 16 March 2011, as set out in the letter of 22 March 2011.

A substantive legitimate expectation can arise when “a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not merely procedural”. In such a case the Court may decide that “to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power”; all from R v North and East Devon HA ex p Coughlan [2001] QB 213, per Lord Woolf MR giving the judgment of the Court at [57].

In Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363, at [68], Laws LJ stated:

“…a public body’s promise or practice as to future conduct may only be denied…in circumstances where to do so is the public body’s legal duty or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the judge, or the last judge) having regard to the legitimate aim pursued by the public body in the public interest.”

The burden is on the public authority to justify the frustration of the legitimate expectation; Paponette v AG of Trinidad and Tobago [2012] 1 AC 1, at [37], per Lord Dyson.

I accept the submissions made by the Claimant, summarised below:

I conclude therefore that the NMC’s decision was an unlawful breach of the Claimant’s substantive legitimate expectation that she had no case to answer in relation to these allegations. I consider it would be disproportionate and unfair for the NMC to resile from it for the reasons set out above.

The Claimant also submitted she had a procedural legitimate expectation that the NMC would follow its own procedures in her case, which do not provide for allegations determined in favour of a registrant by the IC to be re-opened.

In R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, Laws LJ stated at [42]:

“…the court will (subject to the overriding public interest) insist on such a requirement, and enforce such an obligation, where the decision-maker's proposed action would otherwise be so unfair as to amount to an abuse of power, by reason of the way in which it has earlier conducted itself. In the paradigm case of procedural expectations it will generally be unfair and abusive for the decision-maker to break its express promise or established practice of notice or consultation. In such a case the decision-maker's right and duty to formulate and re-formulate policy for itself and by its chosen procedures is not affronted, for it must itself have concluded that that interest is consistent with its proffered promise or practice. In other situations the two kinds of legitimate expectation we are now considering something no less concrete must be found. The cases demonstrate as much. What is fair or unfair is of course notoriously sensitive to factual nuance. In applying the discipline of authority, therefore, it is as well to bear in mind the observation of Sir Thomas Bingham MR as he then was in Ex p Unilever at 690f, that ‘[t]he categories of unfairness are not closed, and precedent should act as a guide not a cage’.”

In my judgment, in rescinding and reversing the decision of the IC, the NMC departed from its established and published procedures. In so doing, it breached the Claimant’s procedural legitimate expectation, and acted unfairly towards her.

For the reasons set out above, I grant the Claimant permission to apply for judicial review, and allow the claim for judicial review.