Okeke v Nursing and Midwifery Council

Under Article 29(6) of the Nursing and Midwifery Order 2001, an interim suspension or interim conditions of practice order does not count towards the two-year period which can make striking off available for certain allegations. A first finding of lack of competence therefore cannot itself result in striking off. A breach of the reasonable-time guarantee under Article 6 does not automatically invalidate disciplinary proceedings. The appropriate remedy depends on whether the delay impaired the fairness of the hearing and on all the circumstances. Delay may nevertheless require mitigation when sanction is reconsidered, including consideration of lengthy interim suspension and any effect on the registrant’s response to the allegations.

The claimant appealed against a Conduct and Competence Committee decision striking her from the nursing and midwifery register. The panel had found lack of competence proved in relation to incidents at two hospitals and misconduct proved in relation to one incident, while two admitted medication-chart allegations did not amount to misconduct. The claimant argued that striking off was unavailable for the lack-of-competence findings because she had been subject only to interim orders, and that approximately five years’ delay breached Article 6. She sought quashing of the sanction and appropriate relief.

1. Sanction for lack of competence. Article 29(6) refers to a final suspension or conditions of practice order, using terminology distinguished by the Order from an interim suspension or interim conditions of practice order under Article 31. The statutory language and scheme therefore exclude interim orders from the relevant two-year period. Treating interim suspension as qualifying would also create the perverse result that delay could expose a registrant to a more severe sanction.
2. A first finding of lack of competence cannot result in striking off. On review under Article 30, the Committee may extend an existing order or make an order which was available when the original order was made, but cannot convert an order into a striking-off order which was then unavailable. The panel acted on an incorrect legal basis. Its sanctions decision was quashed and remitted.
3. Delay. Applying Dyer v Watson [2004] 1 AC 379, a period which on its face gives real cause for concern requires examination of the detailed circumstances. Relevant considerations include the importance of the proceedings to the individual, their complexity and the conduct of the parties. The nearly five-year period, including unexplained inactivity and delay in listing, was unreasonable. The claimant had not contributed to it.
4. The delay breached Article 6 but did not make the hearing unfair. Following Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72 and Spiers v Ruddy (Scotland) [2007] UKPC D2, the remedy depends on the breach and its effect. A stay or dismissal is inappropriate unless a fair hearing is no longer possible or it would otherwise be unfair to proceed. Acknowledgment of the breach, expedition and reduction of sanction may be appropriate.
5. On reconsideration, the Committee had to take account of the unreasonable delay, the claimant’s lengthy interim suspension, the possible effect of delay on her attitude to the evidence, and whether a reduction in sanction was required as a remedy. The interim order remained in force pending final disposal, and the matter was to be reheard with great expedition. Costs were awarded subject to detailed assessment if not agreed.

Conduct and Competence Committee: On 13 January 2012, the panel found lack of competence and one instance of misconduct proved and made a striking-off order.

High Court (Administrative Court): The sanctions decision was quashed and remitted for reconsideration. A breach of Article 6 was declared, but the findings on the allegations were not set aside.