Appeal - reasons for allowing the appeal and setting aside the decision
Before : |
A. R. Binnington, Esq., Commissioner, and Jurats Austin-Vautier and Opfermann |
Between |
Hyacinth Downer |
Appellant |
And |
Jersey Care Commission |
Respondent |
The Appellant appeared in person.
Advocate J. P. Rondel for the Respondent.
judgment
the COMMISSIONER:
1. On 1 October 2024 we heard an appeal by the Appellant against a decision ("the Decision") by the Respondent ("the Commission") to suspend her registration as a provider of a home care service under the Regulation of Care (Jersey) Law 2014 ("the 2014 Law").
2. At the conclusion of the appeal, we upheld the appeal and set aside the Decision. The following are the detailed reasons for our decision.
3. The events that led to the Decision are somewhat complicated and to a large extent relate to hearings that took place before a panel of the Nursing and Midwifery Council (the "NMC") in the UK.
4. The Appellant is a registered nurse, and she has been registered in that capacity with the NMC since 6 September 2005 and with the Commission since 18 December 2019. She has also been registered with the Commission as a registered provider of home care services since 21 March 2023 and it is with the latter registration that this Appeal is concerned.
5. The Appellant was subject to an interim suspension order in respect of the NMC's practitioners register on 23 May 2024, following the outcome of an interim order review hearing. The panel at that hearing considered that on the information before them she had worked as a registered nurse from 1 August 2023 in breach of certain interim conditions of practice that had been imposed in a previous hearing. Unfortunately, the panel did not have before them correspondence that a legal officer of the Royal College of Nursing, Ms Graham, had had with the NMC clarifying that from 1 August 2023 the Appellant had not in fact been working as a registered nurse but had worked for an individual as a healthcare assistant, this correspondence having also included her job description. Subsequent to the panel hearing Ms Graham advised the Appellant that had the panel had the correct information it would not have made the Appellant subject to the interim suspension order.
6. As a result of the error, on 24 May 2024 Ms Graham applied to the NMC for an early review of the interim suspension order, the application being based on the incorrect conclusion that the panel had reached about the Appellant's employment status. The application was accepted by the NMC, and an interim order review hearing was scheduled for 26 June 2024. According to a letter sent by Ms Graham to the Appellant on 12 July 2024 the Appellant, the barrister and Ms Graham attended that hearing but unfortunately it had to be adjourned due to a conflict of interest in respect of the panel members allocated to hear the case.
7. The interim order review was rescheduled to 9 July 2024 and unfortunately this too was adjourned as the panel ran out of time to hear the case due to an overrun of an earlier case. The panel then requested that the interim hearing review be listed as soon as possible, and that the Appellant's case should be the only case that the panel considered on that day.
8. In the Second Affidavit sworn by Ms F McLaughlin, the Deputy Chief Inspector of the Commission, on 28 August 2024, Ms McLaughlin confirmed that the Commission was advised by the Nursing and Midwifery Council on 29 May 2024 that the Appellant had been made the subject of an interim suspension order. In so doing, the NMC provided the Commission with a copy of the decision letter which stated as follows: "The panel decided to give you an interim suspension order. This means you can't practise as a nurse, midwife or nursing associate until the order ends. We've included the reasons for the panel's decision with this letter. This is what we'll publish, unless something's marked as private". The decision letter said that the interim suspension was to be reviewed after six months. The letter also went into detail as to the process that was followed at its hearing, together with an indication of which documents had been taken into consideration and what submissions had been made by the various representatives at the hearing.
9. Ms McLaughlin confirmed that the Commission was of the view that the information provided by the NMC placed the Appellant in breach of the conditions attached to her registration as "a provider of home care services (as an individual care worker)" and stated that the Commission "made a preliminary decision on 3 June 2024 to suspend the Appellant's registration". This preliminary decision or "proposal to suspend", was subject to any representations that the Appellant may have had in respect of the preliminary decision or proposal.
10. A letter headed "Proposal to suspend" was sent to the Appellant by email on 3 June 2024 (although the Appellant has stated that she did not receive it) and gave the Appellant 14 days to provide representations to the Commission in respect of its proposed decision. Ms McLaughlin exhibited a copy of the email to her Third Affidavit, and it appears to have been sent to the email address used by the Appellant. The letter also warned the Appellant that a failure to make representations would result in the suspension of the Appellant's registration.
11. The conditions that had been attached to the Appellant's registration with the Commission were:
"1) Excluding the provision of nursing care. If you continue to practise in this capacity, you will be breaching the Interim Order as imposed by the NMC.
2) You are not to administer medication until you have been assessed as competent to do so by a registered nurse and that this condition has been met by the NMC.
3) You must keep the Commission informed about all the conditions imposed by the NMC."
12. The letter sent to the Appellant stated, inter alia, that "It has been brought to the attention of the Commission by the Nursing and Midwifery Council (the NMC) that at an interim orders panel hearing which took place on 22nd May 2024, your representative at the hearing, upon taking instructions from you, confirmed that between 15th May and December 2023 you were working as a Registered Nurse. As you are aware, this was in breach of condition 1, above, and, if this role included the administration of medication, condition 2."
13. In the absence of a response from the Appellant, which was regarded by the Commission as a further breach of Condition 3, the Commission went on to make the Decision, which is the subject of this appeal.
14. By letter dated 19 June 2024, sent to the Appellant by email, the Commission notified the Appellant of its decision and further informed her that Article 44 of the 2014 Law set out her right of appeal to the Royal Court in respect of the Commission's decision, the appeal having to be made within the period of 28 days following the day the person having the right of appeal receives notice of the decision of the Commission.
15. The Appellant served a Notice of Appeal on 19 July 2024, her grounds being stated as follows:
"It is not true that the barrister Mr Burch told the panel that I was working as a RGN during the period the conditions were imposed. I was so concerned of this injustice I requested a copy of the transcript and it does not support the lie the NMC told the JCC."
16. The Appellant attached to the notice a copy of the letter of 12 July 2024 from Ms Graham to which we have already referred.
17. Ms McLaughlin confirms, in her First Affidavit dated 9 August 2024 that upon receipt of the Appellant's Notice of Appeal the Commission commenced a review of the Decision, which included assessing the further information supplied by the Appellant in support of her appeal, which had not previously been seen by the Commission, prior to making the Decision. She stated that on 29 July 2024, the Commission also became aware that the NMC had replaced its interim suspension order in respect of the Appellant, with an interim conditions of practice order. In the light of this new information the Commission decided on 30 July 2024 to lift the Appellant's suspension of registration and instead proposed new conditions to the Appellant which would be applicable to the Appellant's registration as an individual care worker. This decision was communicated to the Appellant on 31 July 2024.
18. The Commission argue that the appeal has become academic in that the Decision subject to appeal is no longer live, the Respondent having already lifted the Appellant's suspension as a registered provider of home care services, as we have noted, on 30 July 2024.
19. On 23 August 2024 the Commission applied to the Bailiff for an order that "the administrative appeal issued by the Appellant and served upon the Respondent on 19 July 2024 be irrevocably discontinued". The Court determined that procedurally it had no jurisdiction under Rule 6/31 of the Royal Court Rules 2004 to consider the application and ordered that 1 October 2024, being the date fixed in the Court diary for the administrative appeal hearing, would be maintained.
20. In the Respondent's written submissions dated 17 September 2024, Advocate Rondel, on behalf of the Respondent, made, in summary, the following submissions:
(i) The Appellant has already received the maximum redress that she is entitled to, in accordance with Article 44(3) of the Regulation of Care (Jersey) Law 2014 (the "Law").
(ii) In any event, at the time the Respondent made the Decision, on the basis of the information available to it, the Decision was reasonable. It was not wrong of the Respondent to make this Decision.
(iii) There have been no errors or procedural unfairness which are sufficiently serious to render the Decision itself unreasonable.
(iv) The Respondent has not fettered its discretion in this case. There has been no wrongful delegation of a statutory power to another body.
21. In his written submissions Advocate Rondel did however draw to the Court's attention, quite properly in our view, that "For the Court's information, an assessment will have to be made as to whether the Commission had the vires to suspend the registration of the appellant as a registered provider of home care service, pursuant to Article 19 of the Law. Article 19 provides that the Commission may suspend the registration of a manager only, and not the registration of the provider of a regulated activity."
22. It was this point that ultimately formed the basis of argument before us given that if the Decision was ultra vires it would be unnecessary for the Court to go on to determine matters such as the reasonableness of the Decision or procedural unfairness. Furthermore, it suggested that the Appeal was not necessarily of academic interest only given that it would in our view be unfair to the Appellant to have been the subject of a suspension, albeit one that had been lifted, if the suspension was itself ultra vires and should not have been made in the first place.
23. It is accordingly necessary to examine the legal framework within which the Decision was made and the circumstances of the Appellant's registration.
24. On an unspecified date in January 2023 the Appellant completed a standard form headed "Application for registration as an individual sole trader providing home care (i.e. not operating as an agency)" which was stated to be "in accordance with Article 4 of the Regulation of Care (Jersey) Law 2014."
25. Article 4(1) to (4) of the 2014 Law provides that:
"Application for registration as provider or manager
(1) A person who wishes to carry on a regulated activity must apply to the Commission to be registered as a provider in respect of that activity.
(2) An application for registration of an individual as the manager in relation to the carrying on of a regulated activity must be made by the person who is or wishes to be registered as the provider in respect of that activity.
(3) An application under paragraph (1) or (2) must -
(a) be in the form required by the Commission;
(b) contain the information required by the Commission in order to determine the application;
(c) be accompanied by the documents required by the Commission in order to determine the application;
(d) be accompanied by the application fee; and
(e) contain a declaration, signed by the person wishing to carry on the regulated activity and, if the application is for registration of a manager, by that individual, that the information contained in the application is, and the documents accompanying the application are, true and complete, to the best of the declarant's knowledge and belief.
4) An application may, with the permission of the Commission, be made for registration of a person as the provider of, or the manager in relation to -
(a) 2 or more regulated activities; or
(b) a regulated activity carried on at 2 or more premises."
26. By virtue of Article 1 "regulated activity" has the meaning given in Article 2. Article 2 in turn provides that the activities set out in Schedule 1 of the 2014 Law are regulated activities.
27. The relevant activity for present purposes is that in paragraph 1 of Schedule 1, namely "Home Care Service", which is defined as follows:
"Home care service
The provision of a home care service is a regulated activity.
.....
A "home care service" is a service consisting of the provision of care by a person to an individual in private accommodation (not being accommodation provided purely in the context of the provision of a care home service by the same person who provides that accommodation) -
(a) for reward (whether in money or in kind and whether or not that person is a relative or friend of the individual in receipt of the service); or
(b) as part of a professional service offered to the individual free of charge."
28. We should note that Article 3, entitled "Requirement to be registered to carry on, or act as manager in relation to, regulated activity" provides, so far as may be relevant for the purposes of this appeal, that:
"(1) A person must not carry on a regulated activity unless he or she is registered as the provider of the activity.
(2) A person must not act as the manager in relation to a regulated activity unless he or she is an individual registered as the manager in relation to that activity."
29. By letter dated 21 March 2023, which was exhibited to Ms McLaughlin's Second Affidavit, the Commission notified the Appellant that "following your application for registration under the above Law, the Jersey Care Commission has, under Article 5 of the Regulation of Care (Jersey) Law 2014, registered Hyacinth Downer as an individual to provide a home care service."
30. The letter also noted that "Registration under the 2014 Law is subject to specific mandatory conditions as set out in Regulation 3 of the Regulation of Care (Standards and Requirements) (Jersey) Regulations 2018, The Commission may also impose discretionary conditions in accordance with Article 12 of the 2014 Law to ensure that the needs of those using the service are met. The Commission has proposed conditions based on the information you supplied in the application and agreed could be used for this purpose. These are set out in the enclosed notice."
31. Also exhibited was a copy of the certificate provided to the Appellant by the Commission which was stated to take effect from 21 March 2023 and included the wording: "IT IS HEREBY CERTIFIED that the Jersey Care Commission has registered the following service under the provisions of the above Law as an Individual to Provide a Home Care Service."
32. The certificate set out the mandatory conditions attached to the registration such as the location of the home care service and maximum number of hours a week.
33. In her Second Affidavit Ms McLaughlin stated that "at the point of the Appellant's registration as a registered provider of home care services (individual care worker), the Appellant disclosed that she was subject to a fitness to practice referral to the NMC. This was considered at the time by the Commission and the Appellant was advised that she must inform the Commission should there be any progression of the referral and the investigation and or an outcome. This was because the outcome may have had an impact on the Appellant's registration as a nurse and as a registered provider of home care services."
34. Ms McLaughlin went on to say that on 7 August 2023, the Commission was informed by a former employer of the Appellant that the Nursing and Midwifery Council Investigation Committee had held an interim order hearing in respect of the Appellant on 1 August 2023 and had imposed an interim conditions of practice order on the Appellant's registration with the NMC for a period of 18 months. They further imposed 12 conditions of practice upon the Appellant's registration.
35. This information had caused the Commission to review the Appellant's registration, and they proposed to cancel the Appellant's registration, advising the Appellant by letter dated 8 August 2023 that "The Nursing and Midwifery Council has imposed an Interim conditions of practice order for a period of 18 months. The Order includes 12 requirements which include that you must not work unsupervised as a nurse. On this basis, the Commission considers that it is not permissible for you to continue in your role as an individual care worker until such time as the Order is lifted".
36. The letter went on to say that "In accordance with Article 20 of the Regulation of Care (Jersey) Law 2014, I am writing to advise that it is the Commission's intention to cancel your registration as a home care service provider (individual care worker)."
37. The Appellant was given 14 days to make representations in relation to this proposal, which she duly did, albeit after an extension of the time-period was granted by the Commission. Having reviewed those representations, the Commission decided to impose additional discretionary conditions on the Appellant's registration rather than to cancel the Appellant's registration.
38. In terms of relevant sanctions, the 2014 Law confers two distinct powers on the Commission.
39. The first is the power to suspend a manager. Article 19 is in the following terms:
"Suspension of registration of manager
(1) The Commission may suspend the registration of a manager in relation to a regulated activity, for a period of up to 3 months, if the Commission has reason to suspect that -
(a) the manager is not a fit person;
(b) any condition imposed upon the registration of the manager or the provider in relation to a regulated activity has not been complied with; or
(c) the manager has not complied with any requirement relating to the regulated activity that he or she is required by Regulations under Article 14 to comply with.
(2) The Commission may further decide, on one or more occasions, to extend the period of a person's suspension under paragraph (1) by up to 3 months.
(3) Before making a decision to suspend the registration of a manager, or to extend the period of a person's suspension, the Commission must notify, in writing, both the manager and the registered provider of its proposal and the reasons for it.
(4) A person notified under paragraph (3) may make representations, in writing, to the Commission in respect of the proposal.
(5) The representations must be made no later than 14 days after the notice is given.
(6) The Commission, in reaching its decision, must have regard to any representations made in accordance with paragraphs (4) and (5)."
40. The second is the power to cancel the registration of a registered person. Article 20 provides as follows:
"Cancellation of registration
(1) The Commission may cancel the registration of a registered person in relation to a regulated activity if -
(a) the person has failed to comply with any mandatory condition imposed upon his or her registration in relation to the activity;
(b) the person has failed to comply with any discretionary condition imposed upon his or her registration in relation to the activity;
(c) the person is not a fit person;
(d) the person has failed to comply with any requirement in Regulations made under Article 14, whether in relation to the regulated activity in question or in relation to another regulated activity, and whether or not the person has been convicted of an offence for such failure;
(c) the person has been convicted of an offence under this Law or Regulations made under Article 14, whether or not in relation to the regulated activity; or
(d) the person has failed to pay an annual fee and any surcharge due in respect of his or her registration under Article 9.
...
(2) The Commission may cancel the registration of a manager in relation to a regulated activity if there ceases to be a provider registered to carry on that activity.
(3) Before making a decision to cancel the registration of registered person in relation to a regulated activity, Commission must notify, in writing, both the provider and the manager in relation to that activity of its proposal and the reasons for it.
(4) A person notified under paragraph (3) may make representations, in writing, to the Commission in respect of the proposal.
(5) The representations must be made no later than 14 days after the notice is given.
(6) The Commission, in reaching its decision, must have regard to any representations made in accordance with paragraph (4) and (5).
(7) If each of the registered persons notified under paragraph (3) informs the Commission that he or she does not intend to make any representations, or that he or she accepts the Commission's proposal, the Commission need not wait until the expiry of the period described in paragraph (5) before reaching its decision.
(8) The Commission must give the registered person written notice of the cancellation of his or her registration in relation to a regulated activity.
(9) A notice under paragraph (8) must -
(a) give the reasons for the decision;
(b) state when the decision takes effect; and
(c) explain the provider or manager's rights of appeal.
(10) The cancellation of a person's registration cannot, without his or her agreement, take effect before his or her rights of appeal are exhausted."
41. As we have already noted, when the Applicant applied for registration, she applied for registration as an "individual sole trader providing home care (i.e. not operating as an agency)". When her application was granted, the Commission issued her with a certificate confirming her registration in that capacity.
42. When the Commission reviewed the Appellant's' registration in August 2023 following receipt of information that the NMC had, at its hearing that same month, made an interim conditions of practice order, the Commission notified the Appellant that they were proposing to cancel her registration "as a home care service provider (individual care worker)" pursuant to Article 20. In the event they decided not to cancel her registration but instead imposed conditions.
43. We note that the exercise of the power to cancel pursuant to Article 20 was an appropriate power to exercise given that it applies to all registered persons, unlike the power to suspend in Article 19 which applies only to managers.
44. When the Commission were made aware of the second NMC hearing of 22 May 2024, instead of proposing to cancel her registration pursuant to Article 20 as they had proposed previously on 8 August 2023, they instead proposed suspension under Article 19 (1)(b) of the 2014 Law which, as we have noted, is limited to suspension of the registration of a manager, not registration of any registered person.
45. Advocate Rondel valiantly sought to persuade us that the Article 19 power was nevertheless applicable in this case. He referred us to Article 11(1) of the 2014 Law which provides that:
"It shall be a condition of registration of a provider in relation to a regulated activity that there is - (a) an individual who is registered as the manager in relation to the carrying on of that activity by the provider...."
46. Article 11(2) goes on to provide that:
"The States may by Regulations specify, for the purposes of paragraph (1), circumstances - (a) in which an individual who is a registered provider in relation to a regulated activity may also be the registered manager in relation to the carrying on of that activity."
47. We have not seen any Regulations made pursuant to Article 11(2).
48. The only references to a manager or "managing" in this case to which Advocate Rondel could point were:
(i) The Commission's letter to the Appellant of 21 March 2023 notifying her of her successful application for registration which stated: "This is to give notice under Article 5 of the Regulation of Care (Jersey) Law 2014 (the 2014 Law) that the Jersey Care Commission has registered you as carrying on and managing (our emphasis) a Home Care service."
(ii) The entry for the Appellant on the Commission's Register which has the words "as service name" in the column headed "Registered Manager's name".
49. If the Appellant was separately registered as a manager, we find it surprising that there appears to have been no separate registration certificate and no reference to the separate duties of a manager in any of the correspondence. Furthermore, the Commission did not, as we have already noted, purport to suspend the Appellant's registration in her capacity as manager.
50. Having proposed cancellation of the Appellant's registration in August 2023 it is curious that the Commission decided to proceed by way of a proposed suspension in June 2024. Having considered the documentation issued to the Appellant by the Commission and the wording of Articles 19 and 20 of the 2014 Law we find that the purported exercise of the power to suspend the Appellant as a home care service provider under Article 19 in June 2024 was ultra vires.
51. Although we did not hear argument on the detail of the process followed by the Commission it appears to us that the Commission behaved appropriately in revisiting their decision and lifting the purported suspension once provided with further information concerning the defect in the NMC proceedings.
52. We should add that the Commission may wish to consider whether the 2014 Law should be amended to extend the Commission's power to suspend to all registered persons. There may be policy reasons why such a power was not included in the legislation, but the Commission may find it useful in future to have the less draconian remedy available to it in all cases.
53. We should also add that it was clear to us that the Appellant felt a considerable sense of grievance in relation to the way that she had been treated. However, in our view the principal cause of that appears to be the mistakes made in relation to the NMC hearing, which in turn caused the Commission to act on what turned out to be erroneous information.
54. At the conclusion of the hearing, we made an order for costs in the Appellant's favour which, given that she represented herself throughout, are likely to be modest. Whilst it is fair to note that the Commission had made previous offers to agree to the Appellant withdrawing her appeal in return for payment of her disbursements it was always open to the Commission to accept that the original decision was invalid if, as seems to be the case, it had doubts as to its validity, but it did not do so. Furthermore, the Commission pursued an interlocutory application seeking an order for discontinuance which had little prospect of success and, ultimately, has been found to have acted ultra vires.
Authorities
Regulation of Care (Jersey) Law 2014.