“Regulation beyond the echo chambers”: who is listening?
Nicolinka Gancheva Kamberova -V- The Nursing And Midwifery Council  EWCA Crim 2955
On 18 December 2015, a Conduct and Competence Committee ("the Committee") of the Nursing and Midwifery Council ("the NMC"), found three misconduct charges and two competence charges proved against the appellant. The Committee imposed a suspension order of 12 months which was to be reviewed before the date of expiry. The appeal was in respect of the Committee’s determination on impairment and sanction.
At material times giving rise to the charges the appellant was employed by Dartford and Gravesham NHS Trust (“the Trust”) at Darent Valley Hospital as a staff nurse working in the children's accident and emergency department.
The charges against the appellant related to eight incidents:
The appellant was suspended from practice by the Trust in April 2013 but after a successful appeal she was reinstated and returned to work at the Trust in February 2014.
An interim suspension order was then imposed on the appellant by an Interim Orders Committee (IOC) of the NMC in July 2014, which was revoked in August 2014. The appellant then worked until April 2015, at which point an Interim Order Review Hearing was held and the IOC imposed restrictions on her practice. The net effect of which meant that the appellant was unable to work with the agencies that she had been working with and did not gain employment up until the date the appeal was heard.
On 18 December 2015, the Committee found four of the eight charges against the appellant proven and a 12 month suspension order was imposed.
In relation to impairment, the key points that the appellant argued were that:
Despite the appellant’s submissions, Mr Justice Dingemans held that there were no grounds of appeal which would justify setting aside the findings of the Committee and dismissed this ground of appeal.
In respect of sanction, the appellant argued that she had been suspended before the hearing and this did not seem to have been taken into account by the Committee.
In considering this argument Mr Justice Dingemans referred to a skeleton argument which had been submitted by counsel on behalf of the NMC in which it was submitted that the purpose of interim orders is for public protection pending the resolution of cases and that by reference to the judgment of the Administrative Court in Okeke v Nursing and Midwifery Counsel  EWHC 714 (Admin), interim suspension orders and sanctions were different orders.
In Okeke it was made clear that an interim suspension order could not count as a relevant period of suspension for the purposes of determining a relevant suspension as set out in Article 29(6) of the Nursing and Midwifery Order 2001 (which restricts the circumstances in which a registrant may be struck off for competence failures). However, Okeke says nothing about whether a committee should take into account the period of time spent subject to an interim suspension order when considering what sanction and the length of any sanction (conditions/suspension) is proportionate at the substantive stage.
Mr Justice Dingemans then went on to refer to the Indicative Sanctions Guidance published by the NMC. He noted that there was nothing in the guidance to suggest that registrants who had been subject to an interim suspension before a fitness to practise hearing should not have that period of time taken into account as a relevant factor by the Committee when determining the proportionate sanction at the substantive stage.
In considering the appellant’s argument, Mr Justice Dingemans noted that the Committee did not make any reference to the fact that the appellant had been suspended from practice by the Trust or that the effects of the interim orders on her practice were taken into account by the Committee in assessing the proportionality of any sanction.
In response, it was submitted by counsel on behalf of the NMC that the only failing in this case was a failure to set out in the decision that the interim orders had been considered and what effect that had had on the Committee's judgment in respect of sanction.
Mr Justice Dingemans was not persuaded by this submission because:
Having reviewed the decision, Mr Justice Dingemans set aside the sanction imposed by the Committee and remitted the issue of sanction back to the Committee. In doing so, Mr Justice Dingemans stated that the Committee when re-determining the issue of sanction should have regard both to the period of interim suspension before the Committee's determination in December 2015, and the period of suspension pending the appeal.
This is an interesting case. In allowing this appeal Mr Justice Dingemans has issued a warning to regulators as to the wording of their sanctions guidance. Specifically, regulators may need to give thought to whether they should include guidance to Committees as to time spent by registrants subject to interim orders. Specifically, whether or not a period of interim restriction should be borne in mind at the substantive sanction stage, and if so, on what basis. Going forward, Committees may need to give thought to fully explaining in their determination on sanction at the substantive stage the consideration that they have given to any period of interim restriction.
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