Welcome to Legal Jukebox Friday: Legal Jukebox Friday is your weekly dose of lively discussions where we randomly select a legal case to explore and why it may assist those practising in regulatory law, including solicitors, adjudicators and healthcare professionals. While some of these cases may be considered classics, they remain relevant and are worth revisiting.
So, grab your drink, kick back, and join us for Legal Jukebox Friday—where every case has its own beat!
For it’s first selection we’ll be talking about legitimate expectation and specifically the case of R (on the application of B) v NMC [2012] EWHC 1264 (Admin)
So by way of reminder – what is legitimate expectation and why does it matter?
Legitimate expectation in law is a concept that comes into play when a government body or public authority clearly indicates it will follow a specific course of action or reach a particular decision. This leads individuals to reasonably expect that the authority will act as promised. The principle is rooted in ideas of fairness, justice, and the need to prevent authorities from misusing their power.
We can distinguish between two main categories of legitimate expectations:
- Procedural: This involves the expectation that certain steps or processes will be followed before a decision is reached. For example, an individual might expect to be consulted or given a fair hearing.
- Substantive: This relates to expecting a specific outcome based on what the authority has communicated or promised.
For a claim of legitimate expectation to hold up, several conditions must be met:
– The authority’s statement or promise must be clear and definite, without ambiguity or conditions.
– The person making the claim must have reasonably trusted and acted on this promise.
– The promise must have come from someone who appeared to have the authority to make it.
– The expectation itself must be reasonable given the circumstances.
Legitimate expectation has become an accepted basis for judicial review.
Case discussion: R (on the application of B) v NMC [2012] EWHC 1264 (Admin)
This case involves a registered nurse who sought judicial review of the Nursing and Midwifery Council’s (NMC) decision to overturn an earlier ruling by its Investigating Committee (IC). The IC had initially determined there was no case to answer regarding allegations about the nurse’s care of Patient A.
The NMC received a report in June 2009 about potential mistreatment and neglect at a care home, implicating 36 registrants, including the nurse in question. In March 2011, the IC concluded there was insufficient evidence to hold the nurse solely responsible for Patient A’s inadequate care, citing systemic failures at the care home. The said this:
“The panel reviewed all the information before it including the on-table papers provided by the RCN. The panel agreed that these allegations appear to relate to failures of the Home in question to provide a good standard of care to its service users. The panel agreed that other nursing staff would have been involved in this patient’s care and according to the report written by the consultant physician, all qualified nursing staff provided severely sub-standard general nursing care. The panel therefore concluded that there was evidence of system failures and insufficient information to suggest that this registrant was solely responsible for the inadequate care of the service user in question. The panel therefore agreed that there was no realistic prospect of a finding of impairment of fitness to practice.”
On 28 March 2011 Gwent Police wrote to the NMC, expressing concern that the Investigating Committee had decided that there was no case to answer without seeking further disclosure from the police and without awaiting the decision of the Crown Prosecution Service on whether or not to prosecute for wilful neglect. The letter concluded:
“if the NMC are final in their decisions and do not wish to consider any further available documentation then I will endorse our records accordingly”
As a result of this letter from Gwent Police, the NMC’s in-house legal team produced two memoranda dated 16 July and 5 September 2011 criticising the Investigating Committee’s decision
However, in October 2011, the NMC informed the nurse they would ask the IC to reconsider its decision. By December 2011, the NMC notified the nurse that the IC had set aside its previous ruling.
The IC referenced the case of R (on the application of Jenkinson) v NMC [2009] EWHC 1111 (Admin), which suggested committees might have limited power to reverse decisions involving “slips or accidental errors.” The IC interpreted a “slip” as a “faulty action,” which they believed had occurred in this case.
The nurse argued that the NMC’s December 2011 decision was either ultra vires, or in the alternative, breached her legitimate expectations, both procedurally and substantively “by reviewing and setting aside the previous decision of the IC that the Claimant had no case to answer”
In her analysis, Mrs Justice Lang drew parallels with the Court of Appeal’s decision in Akewushola v. Secretary of State for the Home Department [2000] 1 WLR 2295. In that case, the Court held that once the Immigration Appeal Tribunal had reached a final decision on an appeal, it lacked the authority to rescind or nullify its previous ruling. The Court emphasised that any errors in the tribunal’s decision could only be addressed through the proper channels of appeal or judicial review in 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.”
Mrs Justice Lang ruled in favour of the nurse, finding that the NMC had acted unlawfully and beyond its authority. At paragraph 44 she stated:
“a. The letter of 22 March 2011 contained the statement ‘The panel decided that there is no case to answer’ under the heading ‘Panel decision’. This was a clear and unambiguous representation devoid of relevant qualification [my emphasis] on which the Claimant was entitled to rely. It was reasonable for the Claimant to assume that in line with the statutory scheme this would mean that no further action would be taken in her case with respect to the allegations considered and determined by the IC. It was a specific undertaking, directed to the Claimant, not limited in time or otherwise.
- The benefit promised to the Claimant was substantive, [my emphasis] in that she was informed that the allegations would not proceed and that she had no case to answer. In the absence of any change of circumstances to frustrate this expectation is so unfair as to amount to an abuse of power.
- The standard of review is proportionality (Nadarajah). The Defendant cannot show that the decision (i) was no more than necessary to achieve the legitimate aim and (ii) struck a fair balance between the rights of the Claimant and the wider public interest…”
Key points in her judgment included:
- The IC lacks inherent jurisdiction to overturn its own decisions, except for correcting accidental errors.
- This case differed significantly from Jenkinson, where all parties agreed to rescind the earlier decision, benefiting the claimant.
- While the original decision may have been flawed, it couldn’t be classified as a “slip” or an obviously mistaken ruling.
Furthermore, Mrs Justice Lang determined that the NMC had breached the nurse’s legitimate expectation. She accepted the nurse’s arguments that:
- The initial “no case to answer” letter was a clear representation, reasonably interpreted as concluding the matter.
- The promise to the nurse was substantive.
- The NMC’s decision was disproportionate, failing to demonstrate that it was the minimum necessary action and that it balanced the nurse’s rights with the broader public interest.
Why is this case important to healthcare practitioners, decision makers and investigators?
The application of error correction and slip rule procedures in regulatory decisions is highly restricted and subject to stringent legal scrutiny. Regulatory bodies and decision-makers should exercise extreme caution when considering this avenue, as it is only applicable in very limited circumstances. The threshold for invoking such procedures is high, typically requiring clear evidence of an accidental error or obvious mistake, rather than a mere disagreement with the original decision or a flawed exercise of judgment. Before pursuing this route, it is crucial to thoroughly assess the legal implications, potential challenges, and the likelihood of success, as improper attempts to reopen cases can lead to judicial review and potential breaches of registrants’ legitimate expectations.