Doherty v The Nursing and Midwifery Council, Court of Appeal - Civil Division, September 19, 2017, [2017] EWCA Civ 1344

Issuing Organization:Civil Division
Actores:Doherty v The Nursing and Midwifery Council
Resolution Date:September 19, 2017
 
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Case No: B2/2015/2205

Neutral Citation Number: [2017] EWCA Civ 1344

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM SUNDERLAND COUNTY COURT

HH JUDGE FREEDMAN

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 19/09/2017

Before :

SIR TERENCE ETHERTON, MR

LORD JUSTICE DAVIS

and

LORD JUSTICE UNDERHILL

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Between:

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Mr Tom Kark QC and Mr Justin Meiland (instructed by the Royal College of Nursing Legal Department) for the Appellant

Ms Fenella Morris QC and Ms Alexis Hearnden (instructed by the Nursing and Midwifery Council Legal Department) for the Respondent

Hearing date: 11 May 2017

Further written submissions: 20 & 21 June 2017

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JudgmentLord Justice Underhill :

INTRODUCTION

  1. The essential background to this appeal can be summarised as follows:

    (1) The Appellant is a nurse. She was first registered with the Nursing and Midwifery Council (``the Council'') in 1992.

    (2) Nurses are required to renew their registration every three years, at which point they must satisfy the Registrar that they continue to meet the prescribed requirements to be entitled to practise as a nurse. Among those requirements is that they are of good character.

    (3) On 27 February 2013 the Appellant was convicted of a drink-driving offence (her second in five years). She was due to have to renew her registration in the autumn. When she applied to do so she disclosed the offence. The Registrar decided that because of her conviction she did not satisfy the good character requirements and refused to renew her registration.

    (4) The Appellant appealed to a Registration Appeal Panel, which upheld the decision of the Registrar. She pursued a further appeal to the County Court. By a judgment handed down on 19 June 2015 HHJ Freedman dismissed her appeal. She now appeals to this Court.

  2. The Appellant's case on the appeal is two-fold. First, she says that the Registration Appeal Panel took the wrong approach. It should have applied the same standard as if her conviction had come before a ``fitness to practise'' panel as a disciplinary matter The Council's fitness to practise rules are not described in the legislation itself as ``disciplinary'', but that is a convenient shorthand, which I will sometimes use in this judgment., and it should only have refused renewal if such a panel would have decided that she should be struck off. Secondly, she says that in any event, whatever approach was or should have been taken, her conviction did not justify refusing to renew her registration.

  3. The Appellant has been represented before us by Mr Tom Kark QC, leading Mr Justin Meiland. Mr Meiland appeared for the Appellant both before the Panel and in the County Court. The Council has been represented by Ms Fenella Morris QC leading Ms Alexis Hearnden, neither of whom appeared below.

  4. I will consider separately the two issues identified in paragraph 2 above, but I should begin by setting out the legislative provisions governing, on the one hand, registration and renewal, and, on the other, disciplinary striking-off, together with the guidance issued by the Council about the operation of those provisions.

  5. When this judgment was in preparation it became clear that the versions of the relevant legislation in the bundle were not those in force at the material time. The parties were asked to provide the correct versions and also to deal in further written submissions with some questions raised by the Court arising out of the terms of the legislation.

    THE RELEVANT LEGISLATIVE PROVISIONS AND GUIDANCE

  6. The legislative framework is contained in three instruments, the Nursing and Midwifery Order of Council 2001 (``the 2001 Order''); the Nursing and Midwifery Council (Education, Registration and Registration Appeals) Rules Order of Council 2004 (``the Registration Rules''); and the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (``the Fitness to Practise Rules''). I will deal separately with how they provide for initial registration and renewal and for the procedures governing fitness to practise. I will quote from the legislation as it was at the material time. It has since changed in various respects, though the parties are agreed that the differences do not affect the issues before us.

    REGISTRATION AND RENEWAL

    The Orders

    Registration

  7. Article 5 (1) of the 2001 Order - which falls under Part III (``Registration'') - requires the Council to maintain a register of qualified nurses and midwives. Article 5 (2) reads as follows:

    ``The Council shall from time to time -

    (a) establish the standards of proficiency necessary to be admitted to the different parts of the register being the standards it considers necessary for safe and effective practice under that part of the register; and

    (b) prescribe the requirements to be met as to the evidence of good health and good character in order to satisfy the Registrar that an applicant is capable of safe and effective practice as a nurse or midwife.''

    It is important to note the differences in the references to ``safe and effective practice'' as between elements (a) and (b) in article 5 (2) of the 2001 Order. Element (a) is concerned with the proficiency necessary for safe and effective practice. Element (b) is concerned with two characteristics which are regarded as affecting whether a nurse Although the Order and the rules made under it apply identically to both nurses and midwives I will in this judgment refer simply to nurses. is ``capable of'' safe and effective practice, namely good health and good character.

  8. The Council has prescribed requirements in accordance with article 5 (2) which are embodied in rules 5 and 6 of the Registration Rules. Rule 5 (1) (a) requires an applicant to include a declaration of good health and good character and (by reference to Schedule 3) details of any criminal convictions. Rule 6 requires the lodging of a supporting declaration of good health and good character from an independent third party. Rule 6 (6) requires the Registrar, for the purpose of satisfying herself as to the applicant's good character, to have regard, inter alia, to the applicant's declaration, the supporting declaration and any criminal convictions.

  9. Article 9 (1) of the 2001 Order requires a person seeking admission to the register to apply to the Council and provides that if she satisfies the conditions mentioned in paragraph (2) she shall be entitled to be registered. Those conditions are:

    (a) that she holds an approved qualification;

    (b) that she ``satisfies the Registrar in accordance with the Council's requirements mentioned in article 5 (2) that [she] is capable of safe and effective practice as a nurse or midwife''; and

    (c) that she has paid the prescribed fee.

  10. The condition with which we are concerned in the present case is (b). What it means is that the Registrar must be satisfied (in accordance with the prescribed requirements) that the applicant is in good health and of good character: although the reference is to article 5 (2) generally, the language of ``requirements'' and ``capable of'' make it clear that it is aimed specifically at element (b). The matters about which the Registrar has to be satisfied necessarily involve an exercise of judgement. In practice, what they require the Registrar to decide is whether the applicant's health and character are sufficiently good for them to be capable of safe and effective practice; and that is in fact recognised in the terms of the Council's guidance which I set out at para. 21 below - see the final sentence of paragraph 1 as there quoted. It is convenient to note here, by way of anticipation, that Mr Kark accepted that a conviction for drink-driving is in principle capable of demonstrating bad character such as to prevent the Registrar being satisfied that an applicant is capable of safe and effective practice, though of course he says that that was not so in the present case.

  11. Paragraphs (4)-(5A) of article 9 require that the Registrar decide the application within three months of (broadly) the date of application. If no such decision is reached within that period the applicant can appeal - article 9 (6).

    Renewal

  12. Article 10 (1) provides that where a nurse wishes to renew her registration ``at the end of a prescribed period'' she should apply to the Registrar ``in accordance with rules made by the Council''. The prescribed period is three years: see rule 10 of the Registration Rules, where it is referred to as the ``registration period''. Paragraph (5) applies paragraphs (4)-(6) of article 9: in other words, the Registrar has to make a decision within the same time-scale as in the case of a first application for registration.

  13. Rule 11 of the Registration Rules requires that a nurse be sent a renewal application form before the end of the registration period and a notice warning her that unless she submits the completed form, with the relevant fee, prior to a date specified in the notice her registration will lapse.

  14. Rule 13 (1) of the Registration Rules provides that the Registrar must have received the materials required under rule 11 by the specified date. Those include ``a declaration by the applicant, with which the Registrar is satisfied, as to her good health and good character [emphasis supplied]''. Paragraph (2) provides that:

    ``Subject to rule 14(4) to (6) and article 10(3) of the Order, a registrant's registration in a part of the register shall lapse at the end of the registration period unless it has been renewed in accordance with the provisions of this rule.''

    As I understand it, the way the system is supposed to work is that the notice and specified date will be sufficiently far in advance of the end of the registration period to allow a renewal decision to be made before registration lapses under rule 13 (2); but see para. 16 below for the possibility of extension.

  15. Article 10 (2) provides that the Registrar shall...

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