The appellant nurse and midwife (O) appealed against a decision of the respondent NMC to strike her off the register. It was alleged that O's fitness to practise was impaired as a result of her
The appellant nurse and midwife (O) appealed against a decision of the respondent NMC to strike her off the register. It was alleged that O's fitness to practise was impaired as a result of her incompetence and misconduct. During the investigation process, the NMC initially placed an interim order of conditions on O's registration. This was later replaced by an interim suspension order. O remained subject to an interim suspension order for over four and a half years until the NMC's Conduct and Competence Committee found the allegations proved and determined that public confidence could only be maintained in the profession if O was struck off the register.
The issues on appeal were twofold. Firstly, it was argued that it was not open to the NMC to make the striking off order in relation to the lack of competence findings as the wording of the relevant provisions (Article 29(6) of the Nursing and Midwifery Order 2001) was to the effect that she could not be struck off unless she had been "continuously suspended" for more than two years immediately preceding the date of the decision). O claimed that her interim suspension did not count towards that two-year period. The second limb of appeal was that the delay between the referral of the allegations and the date of the NMC's decision to strike her off (four and a half years) was so unreasonable that it breached her right to a fair hearing under Article 6 of the European Convention on Human Rights.
In relation to the first ground, the Court looked at the language of Article 29(6), the purpose of an interim order (i.e. to hold the position until the truth or otherwise of allegations can be determined), and the fact that if an interim suspension did count towards the two year period set out in Article 29(6), it would follow that delay in bringing the matter to a hearing, including unreasonable delay, would put a person at risk of a more severe sanction which would not have been available if the matter had been pursued more expeditiously. As a result, the court concluded that only a suspension order, and not an interim suspension order, could count towards the two-year period identified.
As a result, the Court held that the clear scheme of the NMC's legislation was that, by reason of Article 29(6), a first finding of lack of competence against a person could not result in an order that they be struck off the register. O's appeal was therefore allowed and the striking off order was quashed and remitted for reconsideration.
In relation to delay, the NMC had not sufficiently explained, or justified the reason for the four and a half year period that had elapsed between referral and determination. It was found that the delay was unreasonably long, and the panel had not taken account of it when making its decision.
As a result, the Court found that there had been a breach of O's Article 6 right, and stated that although it had concluded in any event on the basis of the first ground of appeal that the decision as to sanction must be quashed and reconsidered, it would also reach that same conclusion on the basis of the second ground of appeal. The Court concluded that fairness required that, on reconsideration, the panel had regard to the unreasonable delay and the effect which that had on the appellant.
The issues on appeal were twofold. Firstly, it was argued that it was not open to the NMC to make the striking off order in relation to the lack of competence findings as the wording of the relevant provisions (Article 29(6) of the Nursing and Midwifery Order 2001) was to the effect that she could not be struck off unless she had been "continuously suspended" for more than two years immediately preceding the date of the decision). O claimed that her interim suspension did not count towards that two-year period. The second limb of appeal was that the delay between the referral of the allegations and the date of the NMC's decision to strike her off (four and a half years) was so unreasonable that it breached her right to a fair hearing under Article 6 of the European Convention on Human Rights.
In relation to the first ground, the Court looked at the language of Article 29(6), the purpose of an interim order (i.e. to hold the position until the truth or otherwise of allegations can be determined), and the fact that if an interim suspension did count towards the two year period set out in Article 29(6), it would follow that delay in bringing the matter to a hearing, including unreasonable delay, would put a person at risk of a more severe sanction which would not have been available if the matter had been pursued more expeditiously. As a result, the court concluded that only a suspension order, and not an interim suspension order, could count towards the two-year period identified.
As a result, the Court held that the clear scheme of the NMC's legislation was that, by reason of Article 29(6), a first finding of lack of competence against a person could not result in an order that they be struck off the register. O's appeal was therefore allowed and the striking off order was quashed and remitted for reconsideration.
In relation to delay, the NMC had not sufficiently explained, or justified the reason for the four and a half year period that had elapsed between referral and determination. It was found that the delay was unreasonably long, and the panel had not taken account of it when making its decision.
As a result, the Court found that there had been a breach of O's Article 6 right, and stated that although it had concluded in any event on the basis of the first ground of appeal that the decision as to sanction must be quashed and reconsidered, it would also reach that same conclusion on the basis of the second ground of appeal. The Court concluded that fairness required that, on reconsideration, the panel had regard to the unreasonable delay and the effect which that had on the appellant.