R (on the application of B) v The Nursing and Midwifery Council (2012) EWHC 1264 (Admin)

The Administrative Court has reversed a decision by the Nursing and Midwifery Council (NMC) to overturn its earlier decision that a registrant nurse had no case to answer. The case confirms that statutory tribunals have very limited powers to review and/or set aside their own decisions.

Following a police investigation into the care provided at three nursing homes, the registrant’s care of a particular patient, A, was considered by the Investigation Committee (IC) of the NMC. The IC decided that there was no case to answer, stating in its reasons that while there was evidence of system failures at the care home in question, there was insufficient evidence to suggest that the registrant was solely responsible for the deficiencies in the care provided to A.

However, the NMC later informed the registrant that it was asking the IC to review its decision, on the basis that it (the IC) had applied the 'wrong test'. It also notified the registrant of its intention to refer to the IC previously overlooked allegations in respect of another patient.

The IC subsequently set aside its previous decision that B had no case to answer, relying on R (on the application of Jenkinson) v The NMC [2009] EWHC 1111 (Admin), which it concluded was authority for it to set aside an earlier decision where there had been 'a slip or accidental error'. It considered that the definition of a slip was a ‘faulty action’ and concluded that its earlier decision was faulty because of the manner in which it had come to that decision.

The registrant submitted that the IC’s action in overturning its earlier decision fell outside the very limited power of a professional regulatory body to correct its own mistakes. She argued in the alternative that by setting aside its previous decision, the NMC acted in breach of her procedural and substantive legitimate expectation that she could rely on the original decision.

The court held that, on a review of the authorities, there was nothing to support the proposition that a tribunal has a power analogous to that of the High Court to re-open proceedings, beyond the limited power to 'correct accidental errors which do not substantially affect the rights of the parties or the decision arrived at' (as per Sedley LJ in Akewushola). The court distinguished B’s case from Jenkinson which it stated was 'exceptional and very different', in that (i) the allegation in Jenkinson was that the nurse in question had committed a criminal offence, but that conviction had been overturned on appeal; and (ii) the parties in Jenkinson were in agreement that the earlier decision of the NMC should be set aside.

The court held that even though the IC’s first decision may have been flawed, it was an exercise of judgement on the part of the panel and was a legitimate finding. It could not properly be characterised as a ‘slip’.

The court also found that the IC’s decision to set aside its earlier decision was an unlawful breach of B’s substantive and procedural legitimate expectation that she had no case to answer.