Overview
The High Court (Butcher J) in PSA v Nursing and Midwifery Council & Anor (EWHC 637 (Admin)) reviewed a fitness to practise determination arising from allegations of multiple non-consensual sexual acts between military nursing colleagues. The court held that the regulator’s failure to secure key witnesses’ evidence compounded errors by the panel at the no-case-to-answer and impairment stages, requiring that the matter be remitted.
Background and Allegations
- Both the registrant and complainant (Person A) were military nurses.
- Person A alleged several incidents of non-consensual sexual intercourse and other sexual acts; the registrant denied non-consent and denied aspects of the alleged conduct.
- Key evidential applications (forensic hearsay report, police complaint statement) were refused admission due to unfairness to the registrant.
Panel Decisions at First Instance
- Admitted sexual intercourse (August 2021, February 2022, July 2022) found consensual.
- Some charges from July 2022 survived; panel heard further evidence but upheld only one allegation (hospital toilet) as misconduct.
- No current impairment found.
Appeal: Key Legal Issues and the Court’s Analysis
- NMC’s failure to secure attendance of two critical witnesses was held to be a serious procedural irregularity amounting to under-prosecution.
- The panel’s half-time no-case-to-answer decisions were flawed: evidence was not assessed holistically, the reasonable belief-in-consent test was misapplied, and a complainant’s fragmented memory was wrongly taken to undermine reliability.
- The panel’s error in analysing consent included treating silence or absence of protest as consent, without considering whether consent was positively communicated or reasonably believed.
- The panel’s findings were outside the range of reasonable decisions on the evidence.
- The original decision was quashed and the matter remitted for a fresh hearing before a new panel.
Key Practice Points
- Regulators have a positive obligation to secure the attendance of material witnesses. Failure to do so may constitute a serious procedural irregularity.
- Panels must assess all available evidence holistically and view the evidence at its highest in the complainant’s favour at the half-time stage.
- Impaired or fragmented memory is not, by itself, a ground to reject a complainant’s account in sexual assault cases.
- Consent must be positively communicated; passivity or lack of protest is not sufficient and must be assessed alongside whether the respondent had a reasonable, evidenced belief in consent.
- At the no-case-to-answer stage, panels must ensure their findings are justifiable on the evidence and meet legal standards; flawed or unreasonable decisions are liable to be set aside.
- Defence representatives should scrutinise the regulator’s approach to evidential applications and ensure all procedural rights and practical opportunities are pursued.
Observations and Uncertainties
- The judgment does not detail the evidential reasons for excluding specific pieces of evidence beyond the finding of ‘unfairness’; parties should take care to record reasoning for case management decisions.
The precise steps required for a regulator’s fulfilment of their ‘positive obligation’ to secure evidence are fact-sensitive and may depend on practical constraints; the court did not elaborate detailed standards.
If you are facing NMC fitness to practise proceedings, our NMC defence solicitors can help.