Oriaku, R (On the Application Of) v Nursing And Midwifery Council

A regulator may conduct an initial assessment or triage before referring an allegation to a statutory investigating committee. Referral is required only where the allegation concerns a person who is a registrant and provides a sufficient basis for asserting that the relevant entry was fraudulently procured or incorrectly made. The regulator may investigate straightforward matters necessary to decide whether the statutory threshold is met. A complaint about earlier regulatory treatment does not necessarily constitute a fresh allegation requiring referral, particularly where the earlier decisions were already made. Judicial review claims must also be brought promptly, and a claimant cannot ordinarily create a fresh reviewable decision by repeatedly asking a public body to reconsider an earlier decision.

The claimant, an overseas-trained nurse, challenged the Nursing and Midwifery Council’s failure to refer allegations concerning other nurses to its Investigating Committee and the Committee’s failure to investigate and notify her of a decision. She alleged that other nurses had obtained registration through false declarations made by the same recruitment agent involved in her own case.

The claim was issued after correspondence and a complaints procedure concerning decisions made during the NMC’s investigation in 2010 and 2013. At the hearing, the claimant abandoned the pleaded challenge concerning the nurses identified in the NMC’s records, but pursued an allegation concerning a colleague known only as “Yvonne”. The court considered delay, standing, the statutory referral scheme and whether the information supplied was sufficient to trigger the statutory process.

1. Permission and outcome. Permission to apply for judicial review was refused and the claim was dismissed.
2. Delay. The claim was not brought promptly and exceeded the three-month period in CPR 54.5(1). The NMC’s decisions concerning the other applicants were specific past decisions, not a continuing omission. The claimant had also failed to challenge the matter at her 2013 hearing or appeal to the County Court. Under section 31(6) of the Senior Courts Act 1981, there was no good reason to extend time, and reopening the decisions would substantially prejudice the other applicants and the proper administration of the NMC.
3. Standing. A person who makes an allegation about another registrant may have sufficient interest to seek judicial review of an unlawful failure to process it, because the maker of an allegation has recognised status under the statutory scheme. Standing was therefore established, although the claim failed on its merits.
4. Initial assessment and triage. Under articles 22 and 26 of the Nursing and Midwifery Order 2001 and rule 2A of the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004, the Registrar must independently decide whether an allegation falls within article 22(1)(b). Referral is required only where the allegation concerns a registrant and provides a sufficient basis for the assertion that the entry was fraudulently procured or incorrectly made.
5. The Registrar may investigate the allegation and the entry before deciding whether referral is required. This triage function was lawful, appropriate and necessary to prevent action outside the NMC’s powers, waste of resources and spurious referrals. The principles in R (Pal) v General Medical Council [2009] EWHC 1061 (Admin), approved in R (Remedy UK Ltd) v General Medical Council [2010] EWHC 1245 (Admin), applied despite differences between the statutory schemes.
6. The NMC lawfully investigated the sixteen applicants identified in its records. Applicants who were not registrants could not be subjected to the statutory procedures; applicants who later completed valid supervised practice were correctly registered; and the remaining cases were referred.
7. The claimant’s 2015 complaint was principally a complaint about her own treatment compared with others, not a fresh allegation falling within article 22(1)(b). The NMC was entitled to rely on its earlier investigation and was not required to refer the other applicants again.
8. The information concerning “Yvonne” was insufficient to permit triage. Her identity, registration status and connection with the alleged misrepresentations were unknown. The Registrar was therefore not required to refer the allegation. Ground 2 necessarily failed because the Investigating Committee had not lawfully been seized of the matter.