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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

02 MAY 2013

Perry v Nursing and Midwifery Council [2013] EWCA Civ 145; (2013) PLLR 040

Professional regulation - Nursing and Midwifery Council - investigation - Article 26(11) Nursing and Midwifery Order (2001) - interim order - hearing - procedure - Article 26 Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 - interim order - whether Investigative Committee entitled to hear evidence from nurse as to substance of allegations - right to fair trial - right to respect for private and family life - Articles 6 and 8 European Convention on Human Rights

The Investigative Committee of the Nursing and Midwifery Council was not entitled to hear evidence from a registrant pertaining to the substance of allegations made against him. The Committee's role was to consider whether an interim order was justified, not to determine the merits of the allegations.

28 February 2013

Court of Appeal, Civil Division

Hughes and Davis LLJ, Sir Stanley Burton

(1)        The appellant (P) was a registered mental health nurse against whom allegations of inappropriate behaviour had been made. The Investigative Committee of the respondent Nursing and Midwifery Council (NMC) did not allow P to give evidence relating to the truth of the allegations, stating that its role was only to assess any risk and whether there was a prima facie case for making an interim suspension order. The NMC ultimately made such an order.

(2)        P appealed against the decision of the Administrative Court (Thirlwall J) that the NMC had not been entitled to hear evidence from P. P argued that such a restriction breached his rights under Articles 6 and 8 of the European Convention on Human Rights.

(3)        Sir Stanley Burton held (1) that the European Court of Human Rights had recently approved a new approach to be taken to the application of Article 6 to interim orders (Micallef v Malta (2010) 50 EHRR 37 considered). The court had first to ask itself whether the interim order involved the determination of a civil right. On the assumption that both Articles 6 and 8 were engaged, the question to be asked was whether fairness required P to be given the opportunity to give evidence as to the truth of the allegations. What amounted to fairness depended on the context of the hearing. The Invesitgative Committee was under a statutory duty to determine whether to make an interim order. The ability under Article 26 of the Nursing and Midwifery Order (2001) of P to give ‘any relevant evidence in this regard' referred to evidence relevant to the question of whether to make an interim order. The Investigative Committee had to consider the nature of the evidence against P and could disregard evidence which was manifestly unreliable, disputed or not objective. The Investigative Committee could also hear and consider evidence on the likely effect of an interim order on P, and P was entitled to give evidence as to whether the allegation was manifestly unfounded or manifestly exaggerated. However, the Investigative Committee was not required to consider whether the substantive allegation against P was well-founded, or assess the credibility of the allegations, as this was a matter for the Conduct and Competence Committee. The Investigative Committee could not decide disputes of fact and should exercise great caution in dismissing evidence as incredible or implausible. The same principles applied to the application of a suspension as to the prolongation of a suspension; the Investigative Committee was tasked with determining whether the allegations, rather than their veracity or otherwise, merited suspension [16] - [28] (GMC v Hiew [2007] 1 WLR 2007 applied). (2) That a distinction could be drawn between the instant case and that where the applicant was given no opportunity to make representations and the consequences were more serious. Fairness did not require P to be allowed to give evidence as to the substance of the allegations. To hold otherwise would be inconsistent with the statutory scheme, which tasks the Conduct and Competence Committee with such hearings. If P were entitled to give such evidence, the complainant would have to be called to give evidence as well, leading to a hearing before the hearing of the Conduct and Competence Committee. This would also lead the court to reconsider procedure in other cases of interim relief. The procedures put in place by the NMC were compatible with the European Convention on Human Rights [29] - [35] (R (on the application of Wright) v Secretary of State for Health [2009] UKHL 3 considered).

Appeal dismissed

Key paragraphs

[1] - [3] - Introduction

[4] - [6] - The facts

[7] - [12] - The statutory framework

[13] - [14] - The submissions of the parties

[15] - [36] - Discussion

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