R (Oriaku) v NMC [2017] EWHC 235
In this case, the Claimant was removed from the register due to an incorrect entry; she went on to complain that other registrants had not been treated in the same way. The Administrative Court found that, as a complainant O might, in principle, have the right to bring a claim if her complaints were not appropriately dealt with, however in order for a complaint to be referred to the Investigating Committee it must amount to an allegation.
O was a Nigerian nurse who applied to join the NMC's register. Under the NMC's legislation (at the time of her application) she was required to complete a further period of training and work in the UK in an NMC approved institution. Another registrant, A, claimed to provide this work placement, but was not in fact approved by the NMC. O completed the placement and A completed her forms incorrectly stating that she had worked in an NMC approved institution. Several years later these facts came to light and 16 applicants were investigated by the NMC for incorrect entry; in around 2010 four individuals (including O) were removed from the register, while the others either had not registered or had completed another placement.
O subsequently completed a nursing degree in the UK and successfully reregistered with the NMC, but complained that she had been treated unfairly compared to other registrants who had trained under A who were not removed from the register. Of these, she alleged that one was a Ghanaian nurse, 'Yvonne'. Between October 2014 and 2016 she continued to complain to the NMC that she had been treated unfairly, but she never couched her complaints in the form of an allegation against a registrant.
O brought a claim for judicial review, which was dealt with by way of a rolled-up hearing. Lang J refused permission on the ground on the basis of delay, and noted that the real focus of the challenge was the NMC's decision in 2010 as to who to refer to the Investigation Committee. Reopening the decision now would be "substantially prejudicial to the other applicants, and detrimental to the good administration of the NMC". Even so, Lang J noted that while there was no merit to the Claimant's application, "a claimant who makes an allegation to the NMC about other registrants can have sufficient standing to bring a claim for judicial review if the NMC does not process the allegation lawfully, even if it does not impact directly upon him, as the maker of an allegation has a recognised status within the statutory scheme governing the NMC."
Lang J went on to consider the substantive grounds for the application. In particular, O had claimed that the Registrar was obliged to refer her complaints directly to the Investigating Committee. However, Lang J acknowledged the similarities between the NMC's legislation and the GMC's as considered in R (Pal) v General Medical Council [2009] EWHC 1061 (Admin), where the High Court held that, at the preliminary stages of a fitness to practise process, the Registrar could determine whether the information provided did in fact amount to an allegation. Here, O's letters had clearly been a complaint about her own treatment rather than a new allegation and had not been able to identify which registrants may still be incorrectly registered. While she had provided some information about "Yvonne", this information had not been adequate to identify Yvonne as a registrant (indeed, the Claimant acknowledged in the hearing that she was still in contact with Yvonne, but would not provide more identifying information). In the circumstances, the NMC was entitled to rely on its previous investigations into which registrants may be affected.
Regulators may take comfort that registrars have a limited discretion to screen out 'complaints' at the preliminary screening stage (depending on the wording of their legislation); however, the parameters for this are strict. Equally importantly, they should be aware that people making complaints may, in principle, have standing to bring judicial review claims.
Fieldfisher acted for the NMC in this matter.