NMC: 14 Findings Quashed on Appeal

The High Court of Northern Ireland appeal of Wylie v Nursing and Midwifery Council [2026] NIKB 35 arguably reached a new low for a regulatory body which has been overturned and criticised so often in the senior courts, and which has been in special measures for a long time.

On this occasion the court quashed 14 findings for which the registrant practitioner was struck off the register, as well as the striking off itself. The charges related to alleged financial abuse of residents at two care homes which the registrant owned and operated with her husband for people with severe mental disorder and learning disabilities.

The court found that there were serious irregularities in the disclosure process, with the reference to prejudicial evidence about the conclusions reached after investigation by other bodies and with the advice which the Committee was given on the application of the test for dishonesty.

The initial response of the NMC to the registrant’s seeking disclosure of documents was that the registrant was duty bound to seek the documents herself. When it was established that she had in fact done so, the next response was to challenge each and every one of the 16 requests for disclosure.

The case presenter submitted that (i) none of the documents sought was relevant, and (ii) the fact of the documents not being obtained or produced by the NMC did not trigger the Article 6 fair hearing rights.

The court observed that the position was endorsed by the legal assessor who added a truly remarkable submission about what was meant by the concept of ‘equality of arms’. Well worth reading in the judgment at [22].

The decision on disclosure was fundamentally flawed because it was based on erroneous legal advice from the case presenter and from the legal assessor.

As to prejudicial material, it was submitted that information which the Committee took from the opening of the case presenter should never have been put before it. Had the registrant been legally represented at the hearing, there would inevitably have been an application to the Committee to discharge itself because the “background” referenced what, in effect, was almost exactly the cased which the Committee itself was then being asked to consider.

The matter was compounded when the Committee received a written statement from Ms T in which she wrote the Trust and the RQIA were unanimous in agreeing that financial abuse had occurred in relation to precisely the same areas that the charges before the Committee covered.

Furthermore, one of the Committee members had been a serving member on the Board of the RQIA for six years until 2020 and the panel chairman was a former senior police officer.

Having correctly identified the test for dishonesty in Ivey v Genting Casinos [2017] UKSC 67, the case presenter misrepresented the approach which the panel should take when applying that test. The case presenter suggested that the registrant ought to have known what charges were being made, and that was enough. This was important because it was the registrant’s case that her husband took responsibility for financial issues. In the alternative, the case presenter submitted that if the registrant did not know because she was wilfully blind about financial issues, such wilfulness could amount to dishonesty. In making that submission, the case presenter led the Committee astray. He equated “must have known” with “ought to have known.”

Ivey was quite clear: negligence is not sufficient for a finding of dishonesty. At [62] the Supreme Court said: “Civil actions may also frequently raise the question whether an action was honest or dishonest.  The liability of an accessory to a breach of trust is, for example, not strict, as the liability of the trustee is, but (absent an exoneration clause) is fault-based.  Negligence is not sufficient.  Nothing less than dishonest assistance will suffice.”

The case presenter took the Committee to that passage but, unfortunately, then said “That’s rather technical and not immediately relevant.” The court differed: it was unquestionably relevant.

The legal assessor did not correct that error. If he had done so, the Committee’s findings on dishonesty might have been salvageable, but as he did not they were not.

The cumulative effect of the irregularities was such that it was not safe to let any of the proved charges stand and they were quashed.

The court also observed that the Committee was handed a most unenviable of tasks in 2021 when it was assigned the responsibility for adjudicating on charges which covered a period a decade or more earlier. The hearing then took place in 16 tranches over 55 days, some of which were because the legal assessor and members of the Committee did not live in Northern Ireland – just one more problem for the NMC to deal with when it considers future cases.

The Committee was responsible for what happened between 2021 and 2024 but the delay predated its involvement by eight years, at least some of which was due to the stance taken by the NMC on the issue of disclosure long before 2021.

Finally, the court observed that the Committee was entitled to expect and should have received more reliable assistance from the legal assessor, and the same applied to the case presenter.