The High Court has quashed a nursing fitness-to-practise report that recommended erasure of a psychiatric nurse from the register, finding that material agreed to be excluded was put before the committee and that it gave no reasons for not addressing an undertaking offered by the nurse.
In a judgment delivered electronically on 2 October 2020, Mr Justice Barr ordered the matter returned to the Fitness to Practice Committee (FPC) for a fresh report on sanction. The committee must consider only the documents agreed as evidence on the substantive hearing days and must not have regard to other material from earlier hearings.
The nurse had sought judicial review of the FPC’s report of 11 October 2018. He did not challenge its professional misconduct findings, which followed his admissions to seven allegations. Those included breaching the boundaries of a therapeutic relationship, taking a service user outside normal clinical settings, failing to maintain appropriate records and engaging in communications outside the relationship’s proper boundaries. The remaining allegations in the original notice were not pursued.
The admissions arose from counselling provided in 2007–08 to a woman described in the judgment as emotionally and psychologically vulnerable. The court did not determine the underlying allegations of a sexual relationship, which had been raised in an earlier complaint. Its decision concerned the fairness of the disciplinary process and the sanction stage.
During earlier hearings on whether delay had prejudiced the nurse’s defence, the FPC saw witness statements and other documents. The court said these had been admitted only to assess that preliminary issue, not as evidence proving the allegations. When the substantive hearing began, the parties agreed that only limited redacted documents would be admitted as evidence. The court found that the broader, challenged material was nevertheless placed before the FPC for its deliberations. It could not exclude the possibility that the committee relied on it, despite the nurse having had no opportunity to cross-examine the witnesses.
The court also found that the FPC report failed to address an offer by the nurse to give an irrevocable undertaking never to seek removal of his name from the inactive register. The offer was made in lieu of sanction, and the court considered it significant enough to require a decision and reasons, even if the committee rejected it.
The court directed the Board, when considering the fresh report and sanction, to consider only the agreed evidence. The nurse may make submissions to the Board about the undertaking and sanction. The court did not end the inquiry or decide what sanction should be imposed. The parties were given two weeks to make written submissions on the final order and costs.