Fenella Morris QC and Alexis Hearnden have successfully defended the Nursing and Midwifery Council in the Court of Appeal.
Nurse Doherty was convicted of a second drink driving conviction which she declared on her registration renewal form. The NMC Registrar refused to renew Ms Doherty’s registration on the basis that she was not satisfied that Ms Doherty was “capable of safe and effective practice” and the refusal was upheld by the Registration Appeal Panel. Ms Doherty appealed arguing that if her conviction had been considered by a Fitness to Practise panel, mid-way in the renewal cycle, the panel would not have imposed a strike off. In the circumstances, she contended that the decision of the Registration Appeal Panel was unfair.
The Court of Appeal accepted the NMC’s submission that the “subtly different considerations” recognised by both Newman J in Fleischmann and Sir Anthony Clarke in Jideofo are real: whereas in the disciplinary context the panel has available to it a range of sanctions – ranging from striking-off, via suspension and the imposition of conditions to a caution – the decision on a registration application (including an application to renew) is binary. Under the statutory scheme, an application for registration (or renewal) must either be admitted or refused: there is no such thing as suspended or conditional admission.
Rejecting the “fancy footwork” proposed on behalf of Ms Doherty to circumvent the rules, the Court commented that it would be bizarre to admit a nurse to the register – which involves a judgment that she is capable of safe and efficient practice – with a view to her being immediately suspended or subjected to conditions on the basis that she was not fit to practise without safeguards.
To read the full judgment, please click here.