Newsletters Professional Discipline 25th Sep 2017

Doherty v NMC [2017] EWCA Civ 1344

The test for registration should not be confused with the test a strike off in Fitness to Practise proceedings

Ms Doherty first registered with the NMC in 1992. In February 2013 she received a conviction for drink driving (her second in five years). She disclosed this conviction in her registration renewal application that autumn. Her application was refused on the basis she did not satisfy the “good character” requirements. Her appeal to the Registrations Appeal Panel was dismissed, so too her appeal to the County Court. She brought a further appeal to the Court of Appeal.

The principle ground of appeal turned on the proper test to be applied to registrations hearings. Under the NMC’s legislation an applicant to registration / renewal of registration has to demonstrate amongst other things – that she was capable of “safe and effective practice”. This includes the concept of good character. In assessing this the Registrar or panel should have regard to the need not only to protect patients, but also to maintain confidence in the profession and uphold proper professional standards. Ultimately after this procedure a nurse is either permitted to practice without restriction, or not at all. In Fitness to Practice (“FTP”) proceedings brought against a nurse who is already on the register, on the other hand, a panel had a more nuanced approach available. Only in the most serious cases would a nurse be struck off the register.

In this case the Appellant argued that registration should only be refused if the threshold for a striking off order was met. She highlighted the apparent arbitrariness of these two regimes, if this proposition was not accepted. If a conviction occurred well in advance of registration renewal, it would trigger Fitness to Practise proceedings and a range of sanctions would be open to the panel. If the conviction occurred immediately before renewal, and was only declared as part of this process, this range of sanctions would be gone. Either the nurse would be readmitted to the register or not.

The difficulty with this position is that nurses who would receive conditions of practice, for example, if subject to FTP proceedings, would then be admitted to the register without restriction. The Appellant argued, however, it was open to the Registrar to refer such cases for disciplinary investigation.

On the basis this approach may indeed technically be possible, the Court of Appeal observed:

I do not believe that it is a route which the Council is obliged to take, or which it would normally be appropriate to take, in a case of the kind with which we are concerned. The legislation sets up two separate procedures, for registration (including renewal) and fitness to practise, and I do not think that it is appropriate for the Council to go through elaborate manoeuvres in order to procure that a type of case that falls within the terms of one procedure should be decided under another.

It rejected the Appellant’s argument. In its view there is no unfairness in setting a different threshold for admitting a nurse to the register, and subsequent FTP proceedings. It would be “bizarre” to admit a nurse to the register on the basis she is capable of safe and effective practice, and then suspending her and place her on conditions because she cannot practice without restriction. As it observed, if this is the case with registration, it is difficult to see why a different approach should be taken to renewal of registration.

In its view, the unfairness highlighted by the Appellant was not particularly great. First, if convictions were promptly disclosed, only in a few cases would nurses find themselves outside of the FTP process. Second, such a nurse has not lost a substantial benefit by being denied the flexible FTP process. She has lost the chance of maintaining registration subject to conditions, or suspension. It is difficult to conceive that conduct which may lead to a caution would result in being declined registration. Whether a nurse is suspended or refused registration, the effect is the same. Whilst conditions would be preferable to be refused registration, there is no certainty this would be the outcome in any particular case. Third, the nurse who is refused registration can renew her application to appeal at any time. This contrasts favourably to a nurse who is struck off, and who must wait for five years before making a re-application.

The two regimes should not be confused. The test for registration did not need to be elucidated by reference to FTP guidance. Applying this test, on the facts of Ms Doherty’s case, and the findings made by the panel, the Court of Appeal could not find that the decision to refuse her application was wrong.

Christopher Geering

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