Patricia Annon v Nursing & Midwifery Council (NMC) (2017) EWHC 1879 (Admin)

Posted on

Facts

The Appellant appeared before a Panel of the Conduct and Competence Committee in April 2010, and was made the subject of a Conditions of Practice Order. The Order was brought as a result of her failing to adequately complete her learning contracts while working on supervised practice and exhibiting reliability in her standards of care.

The matter was reviewed by the NMC in January 2013 when the Conditions of Practice Order was supplanted by a striking off order. The Appellant appealed the striking off order, and the parties agreed it should be quashed. The focal issue revolved around whether a striking-off order could be enacted exclusively on the grounds of competence.

The Appellants case shadowed comments made by Leggat J in Okeke v Nursing and Midwifery Council [2013] EWHC 714 (Admin). Leggat J questioned whether the NMC could ever make a striking-off order solely on the basis of a lack of competence.

When a Panel of the Conduct and Competence Committee reviews a sanction under article 30 of the Nursing and Midwifery Order 2001, it has the power to make any order “which it could have made at the time it made the order being reviewed.” Article 29(6) of the Order precludes striking-off orders on competence grounds unless a registrant has been continuously suspended or subject to conditional registration for a period of two years.

At the time of the Appellant's hearing in 2013 she had not been continuously suspended or subject to conditions of practice for a period two years. As such it was agreed by consent order that the Panel who reviewed the order in January 2013 did not have the power to impose a striking-off order. (paragraph 23 to 24).

Following the agreement to quash the striking off order, a new Conditions of Practice order was drafted. The order endured several reviews, until the review hearing, the subject of this appeal, which took place on 7 February 2017, and when a striking off order was made.

Over the following years, the Appellant made over 30 applications to undertake the course but was never accepted. The order was renewed a number of times until February 2017, when the committee took the view that the situation could no longer continue and ordered for the Appellant to be struck off the register.

The Committee expressed concern that she had not practised for some 10 years and concluded that the protection of the public and the maintenance of public confidence required that she be struck off.             

At the review hearing on 7 February 2017, the Committee found that the Appellant’s fitness to practise continued to be impaired and that she had been unable to complete the return to practice course. It is important to mention that the Appellant made more than 30 applications for places on the course but was unsuccessful. In effect, the reason for the enacting of a strike off order was due to the Committee's concerns regarding the fact that the Appellant had not practised as a midwife for nearly 10 years at the date of the review. The Committee felt that the outstanding applications for the return to practice course were half-hearted and that the Appellant now lacked insight.

The Appellant appealed the decision, submitting that; given her genuine efforts to comply with the conditions of practice order, striking off was disproportionate and unfair. It was held by the High Court that the Appellant was in "professional limbo" and that some form of time limit should have been imposed on the conditions of practice order, both in her interests and in the wider public interest.

Appeal

The primary ground for the appeal was that the striking-off order was unreasonable and that an additional Conditions of Practice Order would be a proportionate sanction. This submission was based on an assertion that the public “would continue to be protected by another Conditions of Practice order” (paragraph 7). The Appellant acknowledged that a Conditions of Practice order could not carry on forever. However, given her genuine efforts to comply with the requirement to complete a Return to Practice course, the striking-off order was prejudicial and inconsistent. This submission was primarily grounded on the fact that the previous orders had never set a time limit by which the course should be completed. The NMC submitted that the Committee “was entitled to make the decisions it had on the evidence it heard and the findings it reached……. the findings of the Appellant's lack of insight and understanding were sufficiently serious to merit a striking off in the wider public interest” (paragraph 9).

McGowan J submitted that maintaining the current procedure was unacceptable, as it, for all intents and purposes, left the Appellant in “professional limbo” for 10 years. As such, in the interests of the public and of the Appellant, time limits should be set in future. McGowan J, stated that:

“If the Appellant was repeatedly told that the completion of a Return to Practice course was the condition precedent to her return to practice then a failure, through no fault of her own, to complete such a course does not merit a striking off at this stage. It is unjustifiable, even in view of her lack of insight to strike her off when she has been prevented from complying with the required conditions. A time limit must be imposed and on all that I have heard and read it appears that the proper sanction in this case is that a Conditions of Practice Order requiring the appellant to complete a Return to Practice course within two years of this order is the proper sanction and should be substituted in combination with such of those earlier 10 requirements which remain appropriate” (paragraph 10).

Judgment

It was held by the High Court that a situation where the midwife had continued in a form of professional limbo for such a long time was very unsatisfactory. Some form of time limit should have been imposed on the Conditions of Practice Order, both in her interests and in the wider public interest.  If the completion of a return to practice course was a condition precedent to her return to practice, then her failure to attend such a course, through no fault of her own, did not merit her being struck off. Even if she lacked insight, striking her off could not be justified when she had been prevented from complying with the required conditions. The proper sanction was a Conditions of Practice Order requiring her to complete a return to practice course within two years. While it was entirely a matter for the Nursing and Midwifery Council, appeals such as the instant one could be avoided if committees considered imposing realistic time limits for compliance with the requirements of any Conditions of Practice Order (see paragraphs 10-11 of judgment).

Commentary

This decision will provide new scope for those defending Registrants in fitness to practise proceedings. 

However, in the case in hand, the Court acknowledged the flaws in the review procedure and clarified that where a condition is enacted, with no time limits, which require a Registrant to successfully complete training, then her failure to attend such a course through no fault of her own, did not merit her being struck off. 

It is important at this point to note that the Courts highlighted the Registrant’s sincere attempt to comply with the requirements. Consequently, this decision is not likely to support instances where the Registrant has not taken proper steps to engage and comply with conditions regarding training. It is also likely that this case will act as guidance for Panel members, as it provides some indication regarding the manner in which conditions are drafted, specifically around the inclusion of time limits for training to be completed, so as to avoid the “professional limbo” which occurred in this case.