R. (on the application of Wright) v Nursing and Midwifery Council [2015] EWHC 3102 (Admin)

Background

Karen Wright (“W”) appealed to the High Court against a decision of a Conduct and Competence Committee (“the Committee”) of the Nursing and Midwifery Council (“NMC”) dated 5 February 2015. The Committee determined that W’s fitness to practise was impaired by reason of misconduct and W was struck off the NMC’s register as a result.   At the time of the appeal W was a registered nurse who was employed by a National Health Service Trust in the West Midlands from 2001 to 2012. The facts of the misconduct alleged, and found proved, are not pertinent for the purposes of this case commentary, as the key issue was of service upon the Registrant.

The two grounds of appeal relied upon before the High Court, were that the Committee should not have allowed the hearing to proceed as the notice of hearing had been returned to sender and that the Committee should have adjourned the hearing to allow for W to attend. Two other grounds raised by the Registrant were not pursued on the day.

Notice of Hearing

The NMC has an electronic database, named WISER, which holds addresses of registrants. The NMC sent a notice of hearing to W’s address that appeared on WISER (her “registered address”) on 28 November 2014 by first class recorded delivery. The notice of hearing was returned to sender on 3 December 2014. The Committee were satisfied at the final hearing that proper service had been made after hearing representations from the NMC and accepting advice of legal assessor.

The legal assessor had stressed the requirement for a fair hearing and set out the criteria in R v Jones. The Committee were advised to take the utmost care and caution when making their decision of whether or not to proceed in the registrant’s absence. The legal assessor advised that W  had not attended in the past and not engaged with the NMC, and therefore the Panel may infer that an adjournment would not be beneficial, as the Registrant may not attend on future occasions. The Panel were also advised to consider whether W had voluntarily absented herself. The legal assessor also advised that the longer a case continues the quality of evidence given deteriorates which has an impact on the proceedings.

The Appeal

The relevant facts that were put before the High Court were as follows.  Between 28 December 2012 and 8 July 2013, there had been an exchange of correspondence and one telephone call between the NMC and W about the disciplinary proceedings. Letters dated 29 December 2012 and 22 January 2013 had been signed for by W at her registered address. W also consented to the NMC speaking with her medical practitioner in April 2013, following receipt of a letter from the NMC. 

From 9 July 2013 there was regular correspondence from the NMC to W but no replies were received by the NMC.  During 2013, the NMC sent several letters to W at her registered address. These letters were to advise of the investigative and disciplinary process and an interim suspension. It is asserted that W had a telephone conversation with an employee of the NMC on 9 July 2013 where she notified of a change of address. 

By August 2014, no further communication was received by the NMC from W. Inquiry agents located W at a different address (“new address”) on 27 August 2014. W did not formally notify the NMC of the new address in writing at any stage.

On 22 October 2014 the NMC sent a letter to the new address that had been provided by the inquiry agents. This letter was sent in error as the NMC should only correspond with registrants at their registered address. In November 2014, the NMC wrote to the new address to enquire whether this was W’s new address and no response was received.

W stated, for the purposes of the appeal, that she had  telephoned the NMC to inform them of her new address after she had moved in April/early May 2014. W explained she received no correspondence from the NMC from April/early May 2014 until she received the letter dated 22 October 2014 at the new address which asked her to confirm her new address.  W asserted that on 29 November 2014 she telephoned the NMC to confirm her new address.  W received no further correspondence from the NMC at her new address and only learnt of her striking off the register on the radio.

The letter of 27 November 2014 stated:

We understand that you may now be living at this address. However this is not the address we have on our register to you...it is your responsibility to keep us up-to-date with your address…We require you to write or e-mail the following information: PIN, date of birth, previous address, and, current address”

Following receipt of this letter, W telephoned the NMC on 27 November 2014. It is not clear to whom W spoke at the NMC following the letter of 27 November 2014. His Honour Judge Richardson QC considered it a high likelihood that if W had spoken to anyone she would have been asked to put the change of address details in writing. 

His Honour Judge Jeremy Richardson QC considered this matter to be of basic judicial decision which all judges/tribunals have to face from time to time, he described W as the “author of her own misfortune” as she did not confirm her address in writing as she was required to do. His Honour Judge Richardson QC found that the Committee had no alternative but to adjudge that there had been effective and proper service.

His Honour Judge Richardson QC found that W had failed to notify the NMC of her new address in writing within 1 month of her move in May 2014; he found W had comprehensively and totally disengaged from NMC. He found that there had been no error, procedural or otherwise, on the part of the committee. The other grounds of appeal had been abandoned by the Registrant.

The obligation upon a registrant to notify the NMC of his/her current address should be made in writing and should be given within 1 month if there has been change of address. This case is a sage reminder to Regulators regarding the need for good service at the registered address and that it is important to establish an audit trail of reasonable efforts that have been made in accordance with the rules when there is an issue regarding service. It also serves as a reminder to Registrants of the obligation upon them to notify the Regulator of any change of address in writing, and the strict application of these requirements by the Courts if this is not adhered to by the Registrant.