M v Nursing and Midwifery Council  CSIH 86
The case highlights the importance of ensuring that regulators clearly identify the powers of a panel, when corresponding with an unrepresented registrant. The mere fact that a registrant does not appear to be engaging with the fitness to practise process does not mean that panels should be entitled to conclude that nothing is to be gained from adjourning to invite representations, if it appears appropriate to do so, based on the particular circumstances of the case.
An appeal by the appellant against a panel's decision to impose a striking off order upon a review of an order of suspension was allowed. The Court held that, whilst the lack of information put forward by the absent and unrepresented appellant and the lack of engagement, explained the decision taken by the panel, they ought to have placed more weight on her history of illness and personal circumstances, the fact that she was unrepresented, and the fact that she had previously been told (in the determination at the substantive hearing) that striking off would be disproportionate. It was significant that the information provided to the appellant in advance of the review hearing was deemed by the Court to be ineffective at explaining to an unrepresented registrant that she was at risk of being struck off.
M ("the appellant") was made the subject of a six month order of suspension, following a three day hearing before the Conduct and Competence Committee in July 2015. The hearing had proceeded despite the appellant being absent and unrepresented. It was not disputed that the appellant suffered from a history of anxiety and depression and that she had given birth shortly before the hearing, and the panel were aware of this.
The panel's subsequent determination was that it had been proved that the appellant had dishonestly taken quantities of medication from a hospital for personal use on several occasions and that, on one of those occasions, she was unfit for work as a consequence of the medication that she had taken.
The panel further concluded that the facts found proved amounted to misconduct and that the appellant's fitness to practise was consequently impaired. When determining that an order of suspension was the appropriate sanction, the panel concluded that a striking off order would be disproportionate and that there was a public interest in maintaining an experienced and otherwise competent nurse on the register.
As required under article 30(1) of the Nursing and Midwifery Order 2001, the panel was obliged to review the order before its expiry.
The appellant was sent a notice of review dated 17 December 2015 which, in summary, explained:
- That the suspension order was to be reviewed at a hearing on 21 January 2016;
- That the appellant was invited to attend, and had the right to be represented;
- That the review of the order could proceed in the appellant's absence;
- The reasons the panel had given for imposing the order of suspension; and
- That, in lack of competence cases, the panel could make a striking off order only if the appellant had been subject to a conditions of practice order or suspension order continuously for the last two years.
At the subsequent review hearing, there was nothing before the panel relating to the appellant's current state of health or current circumstances, and no information available to suggest that she had legal advice or representation.
The panel proceeded to review the order in the appellant's absence and, having concluded that her fitness to practise remained impaired, imposed a striking off order.
On appeal, the appellant did not take issue with the panel proceeding in absence at the substantive hearing, or of the order of suspension imposed; nor did the appellant challenge that her fitness to practise remained impaired as of the date of the review hearing. The argument advanced was narrow and was centred on the criticisms of the content of the notice of review sent to the appellant; it was argued that the notice had not highlighted that the review hearing might result in a decision to remove the appellant from the register. Further, that once the panel reviewing the order had come to the decision that it wished to impose a striking off order, the panel should have adjourned to provide the appellant with the opportunity to make submissions in relation to that.
The appeal was resisted by the respondent.
The Court of Session (Lady Paton, Lady Clark and Lord Malcolm) held that the panel had not placed enough weight on the factors of which they should have been aware, namely: that the appellant had been told that striking off would be disproportionate, that she was unrepresented, that the proceedings were potentially very serious for her, and that she had a history of illness and personal circumstances which might bear upon her ability to understand and deal with the review hearing.
The Court gave substantial importance to the content of the notice of review and held that the panel should have considered that during the review hearing. The Court accepted that the appellant was advised that the review was important and that she had the right to attend, to be represented and to make representations. However, it held that: 'It was significant, however, that there was no warning in the text of said letter that the limited nature of the sanction which followed the substantive hearing might be reviewed at the hearing with the effect that in her absence a much more serious sanction might be imposed namely a striking off order. We consider that the form and content of the information which accompanied said letter was not effective to explain to a party litigant the nature of the review hearing and that she was potentially at risk of being struck off the register, not least when previously she had been told that the most severe sanction would be disproportionate.'
The Court went on to say that: 'It was essential for the appellant to understand that in misconduct cases, there were no restrictions [unlike in lack of competence cases where there is a requirement for a registrant to have been subject to conditions of practise or suspension for two years continuously before making a striking off order] and that therefore she was at potential risk of an immediate order of striking off as a result of the review hearing.'
The Court quashed the decision of the reviewing panel and remitted the case to a differently constituted panel to determine the appropriate sanction. The Court directed that the appellant be provided with an opportunity to make submissions prior to any decision about sanction.