England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/07/2017

MRS JUSTICE MCGOWAN:

1. This is an appeal against a decision imposing an order striking the Appellant off the Nursery and Midwifery Council's, ("NMC"), Register. A Review Hearing was conducted into a Substantive Order and on 7 February 2017 a Conduct and Competence Committee, ("the Committee"), of the NMC imposed the order striking her off the register.
2. The Appellant is a midwife who qualified in November 2003. On 23 April 2010, she was found to have failed:

i) satisfactorily to complete her learning contracts whilst working on supervised practice and

ii) to demonstrate consistency in her standards of care.

3. She was made the subject of a Conditions of Practice Order. In 2013 there was a review hearing and the Conditions of Practice Order was replaced with a striking off order. She appealed that order and the parties agreed that the order should be quashed, the matter was remitted to a new Committee. A new Conditions of Practice order was made and remained in place, following several reviews, until the review hearing and order which is the subject of this appeal.
4. At each of the review hearings the Appellant's incompetence was found to be capable of remedy. Since the hearing in 2010 every Conditions of Practice Order required the Appellant to complete a Return to Practice course. At a review hearing on 4 February 2016 another similar requirement was imposed. The requirement said that the Appellant must:

"successfully complete a NMC approved return to practice course, with both academic and clinical components, notifying the provider of this conditions of practice order. On successful completion of that return to practice courses the following conditions will apply to your practice."

5. The decision to strike the Appellant off was reached after the next review hearing. At the hearing the Committee found:

i) that the Appellant's failing to demonstrate skill and judgment had first been evident in 2004,

ii) that she had failed satisfactorily to complete three learning contracts in 2005 and 2006,

iii) that her incompetence was still capable of remediation,

iv) that her fitness to practice continues to remain impaired,

v) that she lacked an understanding of the purpose of the return to practice programme and demonstrated a lack of insight into her failings,

vi) that the Appellant was not in breach of the Conditions to Practice Order made on 4 February 2016,

vii) that the Appellant had made more than 30 applications for a place on an appropriate Return to Practice course,

viii) that at the time of the hearing she had two live applications under consideration and

ix) that the Appellant had made efforts to keep herself up to date with developments in the practice of midwifery.

6. The Committee was very concerned that the Appellant had not practised as a midwife for about 10 years. They felt that the outstanding applications were tentative and the Appellant's lack of insight was of concern. They took the view that the maintenance of public confidence in the profession and the protection of the public required that the only adequate and proportionate course was to order that she be struck off the register.
7. The grounds of appeal argue that this course was disproportionate and that a further Conditions of Practice order was the proportionate sanction. It is argued that the finding that the status quo was "no longer workable" was irrational. The public would continue to be protected by another Conditions of Practice order.
8. In oral argument Mr Weston, very sensibly, recognised that the previous situation could not continue indefinitely. He submitted that, given the genuine efforts of the Appellant to comply with the requirement that she complete a Return to Practice course, the order made was disproportionate and unfair. The previous orders had never set a time limit by which the course should be completed. He recognised that the public interest and the interests of the Appellant herself were not best served by the continuing round of review hearings all reaching the same outcome. The crux of his submissions was that if a previous Committee had, properly, imposed a condition precedent on the Appellant's return to practice and she had done all she could to comply and has failed due to the unavailability of a place on a course then it is unfair to strike her off in consequence.
9. Miss Dosoruth, on behalf of the NMC submitted that the Committee was entitled to make the decisions it had on the evidence it heard and the findings it reached. She submitted that the findings of the Appellant's lack of insight and understanding were sufficiently serious to merit a striking off in the wider public interest. She very properly invited the court to afford the appropriate respect to a finding of a professional panel in its review of a practitioner's fitness to practice.
10. It is very unsatisfactory that a practitioner has continued in this form of professional Limbo for such a lengthy period of time and it can only be in the wider public interest, and that of the Appellant herself, that some form of time limit is imposed. In my view that should have been done on an earlier occasion. If the Appellant was repeatedly told that the completion of a Return to Practice course was the condition precedent to her return to practice then a failure, through no fault of her own, to complete such a course does not merit a striking off at this stage. It is unjustifiable, even in view of her lack of insight to strike her off when she has been prevented from complying with the required conditions. A time limit must be imposed and on all that I have heard and read it appears that the proper sanction in this case is that a Conditions of Practice Order requiring the appellant to complete a Return to Practice course within two years of this order is the proper sanction and should be substituted in combination with such of those earlier 10 requirements which remain appropriate.
11. It is entirely a matter for the NMC but it may be that a repetition of this appeal could be avoided if consideration is given by panels dealing with this sort of case to a realistic time limit by which a course must be completed.