The Court of Session has upheld the appeal of a nurse, LM, against a decision of the Nursing and Midwifery Council (NMC) to strike her off from the NMC register in her absence, saying that the powers of the committee had been ‘buried in the text’ of the notice of hearing letter. The court upheld the appeal due to the procedural unfairness in the NMC of determining the issue of sanction in her absence in light of the ineffective correspondence.
A substantive hearing before the NMC’s Conduct and Competence Committee (the Committee) was held in July 2015 in relation to allegations against a nurse, LM, that she had stolen Tramadol from her workplace for her own personal use. LM had provided the NMC with information that she had suffered from a history of anxiety and depression. She had advised the NMC that she had given birth shortly before the hearing in July 2015 and therefore would not be attending. She was not represented.
The Committee concluded on the facts found proved that her actions amounted to misconduct and that the misconduct amounted to current impairment of her fitness to practise. In considering sanction and all information known to it, the Committee decided that a striking off order would be disproportionate and that a six month suspension order was sufficient to maintain public confidence in the profession and to allow LM sufficient time to reflect on her misconduct and engage with the review process.
A notice of review hearing letter was sent to LM on 17 December 2015. It ran to eight pages and included a summary of the findings by the Committee at the substantive hearing. No reference was made to the possibility of a striking off order being imposed until page six and then it was in a list of five possible outcomes.
The review hearing took place on 21 January 2016. LM was not in attendance and not represented at the hearing, as had been the case previously. The Committee proceeded in the absence of LM and made an order to strike off her name from the NMC register.
The decision of the NMC was appealed on the basis that the Committee had erred in law by proceeding to determine the issue of sanction in her absence.
Counsel for LM was critical of the form and content of the correspondence sent to her about the review hearing. He submitted that there was a failure to highlight to a nurse who had been ill and was unrepresented that the review hearing might result in the very serious decision to remove her from the register.
He relied on the seriousness of the sanction; the committee’s knowledge that the appellant had mental health and addiction difficulties; the lack of clarity in the correspondence; and the fact that at the substantive hearing the committee had accepted that there were strong mitigating factors in her favour.
Delivering the Opinion of the court, Lady Clark of Calton stated that, while the court understood the difficulties which the Committee had faced in light of the lack of engagement by LM, they ought to have been aware that she was unrepresented, that the proceedings were potentially very serious for her and that she had a history of illness and personal circumstances which might have had a bearing on her ability to understand and deal with the review hearing. It was held that the Committee had not taken these factors into account when proceeding to strike her off in her absence.
The court was critical of the notice of review letter dated 17 December 2015. It was stated that it was significant that there was no warning in the text of the letter that the review hearing may impose a more serious sanction than had been imposed at the substantive hearing, namely a striking off order.
The court stated that the form and content of the information was ineffective in explaining to an unrepresented registrant the nature of the review hearing and that she was potentially at risk of being struck off the register. This was the case not least because the Committee at the substantive hearing had concluded that a striking off order would be disproportionate. The court said that the powers of the Committee were “buried in the text”.
It was therefore held that there was merit in LM’s complaint of procedural unfairness. The court quashed the decision to make a striking off order and remitted the case to a differently constituted Committee to reconsider what sanction, if any, should be imposed upon LM and directed the Committee to provide LM with an opportunity to make submissions in mitigation prior to any decision about sanction.
The Opinion of the court will be of significance to regulators throughout the UK in relation to the way in which they correspond with their registrants, particularly where they are unrepresented. Consideration may now have to be given to what appears to be pro forma templates used by some regulators in order to ensure that the content of the correspondence is effective and properly informs the reader of the potential outcome of proceedings. To read the full opinion, please click here.