Lasting Powers of Attorney: recent key developments
Patricia Annon and The Nursing and Midwifery Council (NMC)
 EWHC 1879 (Admin)
Patricia Annon (the Appellant) is a midwife. She initially appeared before a Panel of the Conduct and Competence Committee in April 2010, at which time she was made the subject of a Conditions of Practice Order. The original concerns related to her failure to satisfactorily complete her learning contracts whilst working on supervised practice and to demonstrate consistency in her standards of care.
In January 2013, the Appellant’s case was reviewed, and the Conditions of Practice Order was replaced with a striking off order. The Appellant appealed that order; and the parties agreed it should be quashed. The key issue at that stage was whether a striking-off order could be imposed solely on the basis of a lack of competence. This followed the decision of Leggat J in Okeke v Nursing and Midwifery Council  EWHC 714 (Admin) in which he stated at paragraph 23 to 24 in respect of substantive reviews pursuant to Article 30 of the Nursing and Midwifery Order 2001 (the Order):
“In my view, Article 30 does not permit the committee on a review to make an order of a kind which it could not have made at the time of its original decision. Under paragraph (1)(a) it may extend the period of an order already made. That would allow the committee, for example, to extend a period of suspension, but it would not enable the committee to convert a suspension order into a striking-off order. Under paragraph (1)(b) the committee has power to make an order which it could have made at the time it made the order being reviewed. But if the position is that at the time it made the order being reviewed the committee could not have made a striking-off order because of the effect of Article 29(6), then it seems to me that on the clear wording of Article 30(1)(b) it has no power to make such an order on a review. Paragraph (1)(c), which is the only other power available, allows the committee to make a conditions of practice order upon the expiry of a suspension order, but not to impose a more stringent order on the expiry of the suspension order by striking off the person concerned”.
Following the agreement of the parties, a new Conditions of Practice order was made. The order remained in place, following several reviews, until the review hearing which is the subject of this appeal took place on 7 February 2017, when a striking-off order was made. Upon each review the Committee found that the deficiencies in respect of the Appellant’s practice were capable of remedy.
At the initial hearing in 2010, a condition was imposed which required the Appellant to complete a Return to Practice course. At a review hearing on 4 February 2016, a similar requirement was imposed in the following terms:
"[the Appellant must] successfully complete a NMC approved return to practice course, with both academic and clinical components, notifying the provider of this conditions of practice order. On successful completion of that return to practice courses the following conditions will apply to your practice."
At the review hearing on 7 February 2017, the Committee found (amongst other matters) that the Appellant’s fitness to practise remained impaired and that she had failed to complete the course. It should be noted that she had made more than 30 applications for a place on an appropriate course. In essence, the Committee was very troubled by the fact that the Appellant had not practised as a midwife for about a number of years as at the date of the review. The Committee felt that the outstanding applications for the Return to Practice course were tentative and perhaps, more importantly, that the Appellant lacked insight.
The principal ground on appeal was that the striking-off order was disproportionate and that a further Conditions of Practice order was the proportionate sanction. This submission was based on an assertion that the public “would continue to be protected by another Conditions of Practice order” (paragraph 7). The Appellant accepted that a Conditions of Practice order could not continue indefinitely. However, given her genuine efforts to comply with the requirement to complete a Return to Practice course, the striking-off order made was disproportionate and unfair. This submission was principally based on the fact that the previous orders had never set a time limit by which the course should be completed.
The NMC submitted that the Committee “was entitled to make the decisions it had on the evidence it heard and the findings it reached……. the findings of the Appellant's lack of insight and understanding were sufficiently serious to merit a striking off in the wider public interest” (paragraph 9).
Mr Justice McGowan opined that the status quo was very unsatisfactory as it essentially left the Appellant in “professional limbo” for 10 years. As such, it would be in the interests of the public and the Appellant herself that a form of time limit be set, which should have been done on an earlier occasion. Notably, he stated as follows at paragraph 10:
“If the Appellant was repeatedly told that the completion of a Return to Practice course was the condition precedent to her return to practice then a failure, through no fault of her own, to complete such a course does not merit a striking off at this stage. It is unjustifiable, even in view of her lack of insight to strike her off when she has been prevented from complying with the required conditions. A time limit must be imposed and on all that I have heard and read it appears that the proper sanction in this case is that a Conditions of Practice Order requiring the appellant to complete a Return to Practice course within two years of this order is the proper sanction and should be substituted in combination with such of those earlier 10 requirements which remain appropriate”.
This is a helpful decision for those who defend Registrants in fitness to practise proceedings.
Once subject to a Conditions of Practice order, many Registrants experience difficulty (for a variety of reasons) adhering with requirements for training, and such likes. In this case, the Court has confirmed that where a condition is imposed, with no time limits, which require a Registrant to successfully complete training, it is not appropriate or proportionate for the Registrant to be struck off on review where they have been unable to comply after making efforts to do so. It should be clearly noted that the Court pointed to the Registrant’s genuine efforts to comply. As such, this decision is unlikely to carry any weight in circumstances where the Registrant has not taken proper steps to engage and comply with conditions regarding training.
This case is also helpful for Panel members, as it provides some pointers regarding the manner in which conditions are drafted, specifically around the inclusion of time limits for training to be completed so as to avoid the “professional limbo” which occurred in this case.
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