Two bites of the apple- limitation in professional negligence cases
Judgement date: 27 February 2013
Period of interim suspension does not count towards two-year period of suspension necessary under NMC Order for a striking off order to be imposed. Delay of over four and a half years was unreasonable and should be borne in mind by panel when imposing sanction.
The appellant nurse and midwife (O) appealed against the decision of a Conduct and Competence Committee Panel (the Panel) of the Nursing and Midwifery Council (NMC) to strike her name from the register. Prior to the matter coming before the Panel, O had been subject to an interim conditions of practice order which had latterly been replaced by an interim suspension order. She had been subject to an interim suspension order for over four and a half years prior to the final finding of the Panel. The Panel found the allegations of lack of competence and misconduct proved against her and decided that public confidence could only be maintained in the profession if her name was struck from the register.
It was submitted on O’s behalf that it was not open to the Panel to make a striking off order in relation to the lack of competence findings; Article 29(6) of the Nursing and Midwifery Order 2001 (the Order) stated that a person may not be struck off unless they have been ‘continuously suspended’ for more than two years immediately preceding the date of the decision and in O’s case she had not been so suspended, having been subject to an interim suspension order that did not count towards that two year period. It was further submitted that the delay between the referral of the allegations to the NMC and the date of the decision was so unreasonable that it breached O’s right to a fair hearing under Article 6 of the European Convention on Human Rights (ECHR). It was argued on behalf of the NMC that the interim suspension order could count towards the two year period.
The appeal was allowed. Legatt J held that as a matter of statutory construction, the Order distinguished between interim conditions of practice orders and final conditions of practice orders and that Article 29(6) only applied to the latter; the same principle must apply to interim suspension orders. It was noted that if the NMC submission was right, it would lead to the perverse result that the longer and more unreasonable the delay in bringing a matter before a hearing, the greater the risk that a person might be subjected to a more severe sanction.
Accordingly the striking off order was quashed and the matter remitted for reconsideration.
In relation to the Article 6 point, it was held that the four and a half year delay, which the NMC had not explained gave ground for real concern, was unreasonable and amounted to a breach of O’s Article 6 rights. Fairness required that the Panel had to have regard to the delay in its reconsideration of the appropriate sanction.
The full approved judgement in this case is not yet available – once released a full analysis will follow.
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