Doherty –v- Nursing and Midwifery Council  EWCA Civ 1344
The UK Court of Appeal has recently issued its first ruling regarding the criteria to be applied when nurses seek registration with the Nursing and Midwifery Council (the “Council”). In this case the Court of Appeal held that when deciding whether an applicant for registration is of sufficiently good character to be registered with the Council, the Registrar is not required to apply the same criteria as when a nurse is struck off the register following the conclusion of disciplinary proceedings.
In the UK, nurses are required to renew their registration every three years and must satisfy the Registrar that he or she is capable of safe and effective practice and that he or she is of good health and good character. On 2 February 2013 the appellant nurse was convicted of a drink driving offence (her second in five years). The applicant declared this conviction as part of her application for registration renewal. Her application was refused on the basis that she did not satisfy the good character requirement because of the two drink driving convictions. This finding was upheld by an Appeal Panel (the “Panel”).
The applicant appealed the decision of the Panel to the County Court which dismissed her appeal. The applicant then took the matter to the Court of Appeal where she argued that:
- The Panel, in upholding the decision to refuse her registration, took the wrong approach and should have applied the same standards as if her conviction had come before a fitness to practise panel as a disciplinary matter. It should only have refused renewal if a fitness to practise panel would have decided that she should be struck off by reference to the Council’s indicative sanctions guidance; and
- The nature of her conviction does not justify refusing to renew her registration.
The Court of Appeal found that there is an essential difference between the two situations. In the disciplinary context, a panel has available to it a range of sanctions ranging from strike-off or the imposition of conditions to a caution. In the registration context, a decision of whether someone is of sufficient character is binary.
The Court of Appeal dismissed the appeal for reasons including that the decision in respect of an application for registration or registration renewal by the Council is a binary one; the applicant must either be admitted or refused – there is no category of suspended or conditional registration. The Court also noted that a nurse can reapply for registration at any time if his/her application for registration is refused.
This decision indicates that in many cases there may be a higher threshold involved in removing a registrant from a register following a disciplinary fitness to practise process than when refusing to grant registration to an applicant. The rationale for this is that where the person is already on the register, there are less onerous sanctions available than removal which may protect the public such as the imposition of conditions and/or a period of suspension. By contrast, at registration stage, the applicant for registration is either of sufficient character or not, with in most cases regulatory bodies not having the power to grant registration subject to conditions.
The full judgment can been accessed here.