R (Oriaku) v NMC [2017] EWHC 235 (Admin)

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Commentary

This case confirms that delegated Registrar powers are governed by strict statutory provisions and exist to protect Registrants, protect the public and ensure proper expediency and fairness of regulatory processes. It is further important to note that complainants, informants and/or referrers, by the virtue of having brought a complaint in relation to another registered professional, can be awarded the necessary standing to bring judicial review proceedings.

Summary

A registrant Claimant brought a judicial review against the Nursing & Midwifery Council (NMC) in relation to the alleged unlawfulness of the Registrar’s decision not to refer her complaint to a panel of the Investigating Committee (IC).  The Claimant was first and foremost found to have exceeded the time permitted for bringing a judicial review, however, in the interests of closing down the litigation the Court proceeded with the claim.  The Claimant challenged the Registrar’s powers to triage matters relating to the false procurement of registration under the NMC (Fitness to Practise) Rules 2004 (the Rules). The Claimant was found to have adequate standing to bring the judicial review but the claim failed on all grounds brought.

Facts

The Claimant was one of a number of nurses who were incorrectly admitted to the register in 2006, due to the fraudulent activities of a recruitment agency nurse.  The incorrect admission was no fault of the Claimant and there had been no concerns raised in relation to her personal abilities as a nurse. Irrespective of the lack of concerns, when the false registration was discovered she was duly removed from the Register by the IC in January 2013.

The Claimant did not appeal the outcome of her IC hearing and instead attempted to gain re-entry onto the Register, which she was unable to do until or unless she took an English language test (a mandatory requirement since 2005). The Registrant refused to take the test and decided to seek access regardless.

The Claimant went on to make a number of referrals to the NMC pertaining to the fact that she had been treated unfairly by being removed from the Register where others had not. She claimed to have specific knowledge of one nurse in particular “Yvonne” who had procured entry to the Register in the same way that she had, and that she had seemingly been allowed to continue her registration.

The NMC looked into the decisions made in relation to the nurses concerned and for obvious reasons was unable to specifically identify the Registrant “Yvonne”.  The Claimant went on to exhaust the complaints process and Registrar determination that her complaint was not to be referred to the IC.

The Claimant was eventually admitted back onto the Register in 2016 having completed a UK nursing qualification course. Nonetheless, she went on to bring a judicial review claim against the Registrar’s decision.

Grounds

The grounds for the judicial review centred around the NMC’s failure to refer the Claimant’s complaint to the IC under article 22(1)(b) of the Nursing & Midwifery Order 2001, namely that one or more nurses had fraudulently procured entry, or had been incorrectly admitted to the register.  The Claimant also claimed that the NMC had failed to give the Claimant reasons as to why the referral had not been made. 

It was alleged that as the NMC had refused to release details of the other nurses involved in this matter, only the NMC was aware of those who were the subject of the referral and in any event, the Claimant was definitely aware of one example – the nurse “Yvonne”.

Three days prior to the judicial review hearing being heard, the Claimant decided not to pursue the ground that the NMC had failed to refer her complaint that there were other relevant persons (whose identities were not known to the Claimant) to the IC.  However, the Claimant maintained her case that entry had been falsely procured by “Yvonne” and that her complaint in relation to this should have been referred.

Judgment

Judgment was handed down by Mrs Justice Lang DBE in a ‘rolled’ up hearing.

Lang J began by indicating that the Claimant had abandoned the entirety of the pleaded claim in the days prior to the hearing, however, in any event she permitted the matter to continue to try and put an end to the litigation.

Lang J spent a considerable portion of time looking at the NMC’s statutory framework and provisions of power.  She looked at how the NMC (Fitness to Practise) Rules 2004 operated alongside the NMC Order 2001.  Specifically, in this case there was a focus on Article 22(1)(b) which relates to the referral of allegations of false procurement to the Register (Article 22(1)(a) being matters of misconduct). 

The key points raised within the judgment, were as follows:

  • There is no parallel position for referrals made under Article 22(1)(b) for the Registrar to notify the maker of an allegation of her decision (as there is under Article 22(1)(a)). Therefore the Claimant had no right to demand reasons for the non-referral to the IC.
  • The Claimant had submitted that under Articles 22 and 26 (the latter dictating the powers of the IC to consider those referrals brought to it under Article 22) that the NMC must immediately refer any allegation of fraudulent or incorrect entry on the Register to the IC, and therefore they had acted unlawfully in this case by undertaking the triage process.   Lang J disagreed with this interpretation and stated that the FtP Rules delegated to the Registrar the function of undertaking an initial assessment and that under Rule 2A(1), it is the Registrar’s function to consider whether or not an allegation “falls within article 22(1)(b) of the Order”.   Lang J referred to the cases of R (Pal) v General Medication Council [2009] EWHC 1061 (Admin) where comparable schemes at the GMC were analysed and the Registrar’s delegated triage power was again supported by statutory interpretation.   Lang J stated that the NMC reopening the historical decision made in relation to the other nurses would be "substantially prejudicial to the other applicants, and detrimental to the good administration of the NMC".

Lang J felt that the Claimant’s referrals to the NMC had really been centered around a complaint about her own treatment rather than for the purposes of bringing a new allegation.  The Claimant was further found to have withheld information in relation to the spurious “Yvonne” and thus the NMC had not been afforded a proper opportunity to consider this part of the allegation.  It was noted that none of the original nurses concerned had the name "Yvonne" and that the NMC had provided compelling evidence to demonstrate that it would be near-on impossible to identify this individual without further information.

The claim failed on all grounds.