Hamilton, R (on the application of) v UK Central Council for Nursing, Midwifery and Health Visiting & Anor

For Article 1 of the First Protocol, the court must respect the State’s judgment about what is necessary in the public interest, while examining whether the resulting property interference imposes an individual and excessive burden. The Article 1 proportionality inquiry is distinct from the more intensive necessity analysis under Articles 8 to 11.

A professional registration scheme may lawfully use an either-or process for lifting a health-based suspension. It need not contain an express power to restore registration subject to conditions where the decision-maker can adjourn an application, identify the safeguards required, and terminate the suspension once satisfactory counselling or monitoring arrangements are evidenced. The absence of an ideal or more flexible scheme does not itself establish disproportionality.

The appellant, a registered nurse and midwife, had been suspended from practice on health grounds under professional conduct rules made under the Nurses, Midwives and Health Visitors Act 1979, later consolidated in the Nurses, Midwives and Health Visitors Act 1997. The Health Committee refused her application to terminate the suspension.

Crane J rejected her judicial review claim on all grounds. Permission to appeal was granted only on whether the absence of an express power to terminate the suspension conditionally breached Article 1 of the First Protocol to the European Convention on Human Rights. The Court of Appeal also considered whether the rules themselves implied such a power and whether any breach caused material loss.

1. Appeal dismissed. The court proceeded on the assumption, without deciding it, that professional registration was a possession protected by Article 1 of the First Protocol.
2. Rule 49 did not contain an implied power to terminate a suspension on express conditions. Such conditions would require an enforcement mechanism, and the rules supplied none. A breach could otherwise be addressed only by recommencing suspension proceedings.
3. The relevant question was whether the existing either-or scheme placed an individual and excessive burden on the practitioner in securing restoration to practice. The court was not deciding whether a more flexible scheme would be preferable.
4. Under Article 1 of the First Protocol, the State has a wide area of judgment as to what is necessary in the public interest. The court’s task is to assess whether the scheme nevertheless goes beyond the permissible degree of proportionality. That approach reflected James v United Kingdom [1986] 8 EHRR 123 and Sporrong and Lõnnroth v Sweden (1983) 5 EHRR 35. It differs from the necessity-in-a-democratic-society analysis under Articles 8 to 11.
5. The scheme was proportionate. The Health Committee could adjourn an application to allow acceptable counselling and monitoring arrangements to be put in place, or refuse the application with reasons indicating when a fresh application might sensibly be made. It could then terminate the suspension when satisfied that the risk of relapse would be adequately contained. The absence of a power to impose conditions, and the fact that a better scheme might have been devised, did not make the existing rules Convention-incompatible.
6. The court did not decide whether registration was a possession, the intervener’s ability to raise that new point, or whether the Committee should have adjourned, because those issues were unnecessary to the disposition.

Lord Justice Schiemann and Lord Justice Jacob agreed with Lord Justice Sedley’s judgment. The appeal was dismissed, the appellant’s costs were to be assessed, and permission to appeal to the House of Lords was refused.

• High Court, Queen’s Bench Division: Crane J rejected the judicial review claim on 20 December 2002, including the challenge based on the absence of a power to terminate the suspension conditionally.
• Court of Appeal (Civil Division): On appeal, the court considered only the Article 1 of the First Protocol issue for which permission had been granted and dismissed the appeal: [2003] EWCA Civ 1600.