Doherty v Nursing and Midwifery Council [2017] EWCA Civ 1344

Background

The Appellant was a nurse regulated by the Nursing and Midwifery Council (NMC).

The NMC regulates registered nurses and midwives in two main ways: through Registration and Renewal, and through fitness to practise (FTP) proceedings.

To enter the Register, a prospective nurse (or midwife) must demonstrate that they:

  • hold an approved qualification
  • are capable of safe and effective practice; and
  • have paid the prescribed fee

Once entered on the Register, the nurse must apply for renewal of their registration every three years; this will be granted if the Registrar is satisfied that the nurse continues to meet the requirements for entry to the Register under Article 9 of the NMC Order of Council 2001(the Order), and that they are up to date with their continuing professional development (CPD). If the Registrar is not satisfied that the nurse meets those standards, then the application will be refused.

One of the requirements for both Registration and Renewal is that the nurse can provide evidence of good character.

Amongst other matters, if, at any time while on the Register, the nurse behaves in a way that puts the public at risk and/or falls below the standards expected or receives a conviction or caution, then they may be made subject to FTP proceedings.

The Facts

On 27 February 2013, the Appellant was convicted of a drink-driving offence. Rather than informing the NMC of this conviction immediately, she waited until the autumn of 2013, whereupon she declared the conviction in the course of her application for renewal of her registration.

Her application for renewal was refused by the Registrar, on the basis that, because of her drink-driving conviction, she was no longer of good character and so did not meet the requirements for entry to the Register. As a result of this decision, the Appellant was no longer allowed to practise as a nurse.

The Appellant appealed this decision to a Registration Appeal Panel (RAP), which upheld the decision of the Registrar; she then appealed unsuccessfully to the County Court. Finally, the Appellant submitted an appeal to the Court of Appeal.

The Appeal

The Appellant put forward two grounds of appeal:

  1. The RAP should have applied the same standard as if her conviction had come before a Conduct and Competence Committee (CCC) as a FTP matter, and it should only have refused renewal if the CCC would have decided that she should have been struck off; and
  2. Regardless of their approach, her conviction did not justify refusing to renew her registration.

The Court of Appeal, consisting of Sir Terence Etherton, Master of the Rolls, Davis and Underhill LJJ, dismissed her appeal on both grounds.

Ground 1: The correct approach to an application to renew

The Court considered the legislative framework and guidance which applied to the Registration and Renewals process, and to FTP proceedings, both now and at the time of the Appellant’s renewal application.

It was noted that the requirement of good character at Registration and Renewal was not absolute (i.e. having a conviction or caution did not automatically prevent a nurse from being entered onto the Register), but that the Registrar must be satisfied that the nurse’s character was sufficiently good for them to be capable of safe and effective practice without supervision. Where an applicant has a conviction or caution, the Registrar must consider the extent to which the conduct created or evidenced a risk to patient or service user safety, and what may be required to maintain public confidence in the nursing profession and uphold proper professional standards and conduct.

Similarly, in the FTP regime, if a nurse receives a conviction or caution, and the CCC found that their FTP to be impaired by reason of that conviction, the CCC could make an order directing the Registrar to strike them off the register. However, strike-off is not required, and therefore the CCC could instead suspend or impose conditions on the Registrant’s registration.

The Court noted that in the case of CRHP v GDC and Fleischmann [2005] EWHC 87 (Admin), the High Court recognised that there were different considerations in FTP proceedings from those at Registration but found that “the differences should not be allowed to give rise to the existence of a double standard in connection with those who are entitled to be in practice”. The Appellant also relied on Jideofo v The Law Society [2007] EW Misc 3, in which a similar observation was made in relation to the regulation of solicitors.

The Court acknowledged that there was some force to the argument put forward on the Appellant’s behalf, which is that it was arbitrary and unfair that the conviction could have a different impact on a nurse’s ability to practise, depending on whether it occurred during the three years of registration or shortly before that registration was up for renewal. If the latter, she could be prevented from working entirely; if the former, she could return to practice, albeit perhaps after a period of suspension or with restrictions on the circumstances in which she could practise.

The Court also recognised that there would be criminal convictions which were so serious that they justified the conclusion that a nurse was not capable of safe and effective practice and that, if she were already on the register, her FTP would be deemed so seriously impaired that she should be struck off.

However, the fact that the relevant questions (and answers) would effectively be the same in serious cases did not justify disregarding the distinction between a registration decision and a disciplinary decision. The reason for this was that whereas a CCC could allow the nurse to continue working but with restrictions, the Registrar could only re-admit a nurse to the Register without restriction, or refuse their application entirely.

The Court considered what would happen if the Appellant’s argument were correct, and the Registrar was asked to deal with a nurse whose conviction would have not have justified strike-off in the FTP regime, but would have required conditions or suspension to be imposed before she could practise safely. According to the Appellant’s argument, “the Registrar would be obliged to admit the applicant to the register, with immediate effect and unconditionally.” The Court considered that this would be an unacceptable outcome, as “the public would have been deprived of the protection which suspension or the imposition of conditions would have been intended to achieve”. Nor did the Court consider that this was consistent with the language of the Registration legislative framework: “If a nurse whose fitness to practise would, in disciplinary proceedings, be held to be so impaired as a result of a criminal conviction that her registration should be suspended it is hard to see how she can be said to be ‘capable of safe and effective practice’” (at [45]).

A suggested second path, whereby the nurse could be admitted to the Register and then immediately placed under an FTP investigation, was recognised to be possible in principle, but unsatisfactory in practice: “It would be bizarre to admit a nurse to the register – which involves, as I have said, a judgment that she is capable of safe and efficient practice – with a view to her being immediately suspended or subject to conditions on the basis that she was not fit to practise without safeguards” (at [48]).

The Court concluded that its preferred interpretation of the two regimes could result in the unfortunate situation of a nurse having her conviction dealt with under the binary Renewals regime when it would have been dealt with by the more flexible FTP regime if the conviction arose at another time. However, it did not accept that this outcome would be as unfair as was submitted on the Appellant’s behalf: firstly, this situation was unlikely to arise often; secondly, she would not necessarily fare better under the FTP regime, especially if the result were a suspension of her ability to practise; and thirdly, there was nothing to prevent her from reapplying for registration almost immediately, whereas she would have to wait for five years before she could reapply after strike-off.

Ground 2: The Substance of the Decision

The Appellant’s second ground of appeal was that, regardless of the approach taken by the RAP, the decision to refuse registration was wrong. The Court rejected this argument.

The RAP had accepted fully that the Appellant was a competent and experienced nurse. However, the conviction received in February 2013 was not the Registrant’s first for driving with excess alcohol; she had been convicted in July 2008 of the same offence, and it was felt that this established a pattern of offending. Further, it was an aggravating feature that she drove her car in the car park of a hospital, and was involved in a minor accident. Finally, the RAP described her explanation of why she had driven while under the influence of alcohol as “implausible” and rejected her evidence that she had not realised that she would not be fit to drive. On that basis, the RAP concluded that the Appellant had not demonstrated that she had the necessary good character to be capable of safe and effective practice, and upheld the original decision of the Registrar.

Commentary

This decision provides an important clarification of the distinctions to be drawn between the two regulatory frameworks operating in the NMC, which may at first blush appear to be very similar.

It also offers a salutary warning to a Registrant who has received a conviction and is approaching the deadline for renewal, and who may wish to consider whether the FTP regime is a preferable venue for the conviction issue to be resolved.