In the recent decision of LM v The Nursing and Midwifery Council the Inner House of the Court of Session in Scotland has upheld the appeal by a nurse (LM) against a decision to remove her name from the register by the Nursing and Midwifery Council (“NMC”). In so deciding, the Court criticised the fact that the powers of the Conduct and Competence Committee (the “Committee”) had been ‘buried’ in the text of the Notice of Hearing.

Background

The initial hearing regarding LM was held in July 2015 and concerned allegations that LM had stolen Tramadol from her workplace for her personal use. The registrant had suffered from a history of depression and anxiety and had provided information to the Committee regarding this. LM also informed the NMC that she had given birth shortly before the hearing in July 2015 and therefore would not be attending.

At the substantive hearing, where LM was not present or represented, the Committee found that LM’s actions amounted to misconduct and recommended that a six month suspension order would be an appropriate sanction, reviewable within the six month period. The Committee in recommending this sanction indicated that this sanction would serve to preserve the public’s confidence in the profession and would also give the registrant ample opportunity to engage with the review process.

Review Hearing

LM received a Notice of Review Hearing (the “notice”) in December 2015. This Notice was eight pages in length and included a summary of the findings the Committee made at the substantive hearing. Page six of the Notice listed five possible outcomes of the review hearing, one of which was strike off/erasure. When the review hearing took place in January 2016 and the registrant did not attend, the Committee proceeded to strike LM off the registrar.

Appeal

The registrant appealed the decision of the Committee inter alia on the basis that the Committee proceeded to make a decision in her absence. In appealing the decision, counsel for LM emphasised that the content of the correspondence sent to LM should have clearly stated that the review hearing could result in LM being removed from the register. In this regard, LM’s representatives also relied on the fact that LM was unrepresented at the hearing and had indicated to the Committee that she had a history of mental illness.

In deciding the matter, the Court indicated that even though LM had not engaged in the review process, the Committee should have taken into consideration the fact that LM was unrepresented and also that she had a history of illness which may have impacted her ability to understand the review process.

In addition, the Court stated that there should have been a greater warning in the text of the Notice which explained clearly to the unrepresented registrant that the hearing could result in cancellation.

On that basis, the appeal was allowed and the decision to remove LM from the register was overturned. The Court consequently remitted this matter to a differently constituted Committee for the purpose of reconsidering sanction.

Impact

This decision will be of significance to regulators both in the UK and in this jurisdiction in the context of how they correspond with registrants and the manner in which potential outcomes are communicated and explained.

The decision in LM v The Nursing and Midwifery Council suggests that a Regulator must ensure the content of correspondence to registrants properly informs the recipient of potential outcomes, particularly if the registrant is unrepresented.

A copy of the Judgment can be accessed here.