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High court ruling prevents NMC from striking off incompetent nurses

Nurses and midwives cannot be struck off the register for incompetence under the Nursing and Midwifery’s current rules, it has emerged.

In a High Court case back in February a barrister representing midwife Mercy Okeke successfully argued it was unlawful to strike off a registrant unless they had first been subject to a two year suspension order.

The judge in the case, Mr Justice Leggatt, went even further in his ruling saying in his view the wording of the Nursing and Midwifery Order 2001, the legal basis for the NMC’s powers, meant a finding of incompetence could “never result in striking off”.

He said “at the most” a registrant found to be incompetent could be suspended for up to a year. This suspension could be renewed following review, but could not be converted into a striking-off order without further findings against the individual.

The NMC shared the ruling with its fitness to practise panels at the time, but did not make any public announcement.

The situation came to light last week after Ellen Agnes Murray, a nurse who worked at Aberdeen Royal Infirmary, used the precedent set by the Okeke case to appeal her own striking off order. The NMC has agreed to reconsider Ms Murray’s case.

Ms Okeke was struck off after being found guilty of two charges of incompetence while working as a midwife at two London hospitals in 2006. She had been subject to a series of interim suspension orders stretching over almost four years before an NMC panel made a decision to strike her off in January 2012.

However, her barrister Michael Egan claimed the wording of the legal regulations that grant the NMC its power meant interim orders did not count.

The NMC argued that the purpose of a suspension order was to give the registrant opportunity to address their incompetence and this could be done equally well whether it was an interim order or a full sanction.

However, the judge in the case, Mr Justice Leggatt discounted the NMC’s argument on the grounds interim orders were made without any finding of incompetence. 

Mr Justice Leggatt – who also ruled that Ms Okeke’s human rights had been breached by the amount of time it took the case to come to a hearing – said it was unfair a registrant whose case took two years or more to be heard was at risk of being struck off when a registrant whose case was heard in a more timely manner was not.

Nursing Times understands the NMC is in discussion with the Department of Health about this and other changes to its powers.

Are you able to Speak Out Safely? Sign our petition to put pressure on your trust to support an open and transparent NHS.


Readers' comments (41)

  • Ridiculous!!!!!
    If the NMC can't strike off incompetent nurses then what is the point in anyone maintaining their competence (unless of course you have morals and actually want to give the best care possible to your patients). This opens the floodgates for all manner of incompetent staff to continue to give poor care without any consequence. Disgusting!!!

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  • So we await the court cases and litigation from those illegally struck off. That should lead to a rise in our fees....

    How did their legal dept not see this?

    Scrap the NMC and let us appoint proper experts in management.

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  • The Law is the Law and the NMC's usual poor track record in interpreting the Law and applying it fairly is at fault here.

    The comment above is interesting, where is the blame for the incompetence being bred and accepted in the first place. Remember this is incompetence not negligence. Some mentors, assessors, educators and managers will all have been complicit at some point.

    Also interesting is the apparent delay between the judgement that the NMC has been wrong to apply sanctions in the way that they have and it falling into the open public domain. How fascinating that they have kept their own dirty linen as quiet as possible whilst on the other hand they publish news releases to regional newspapers etc whilst registrants still have the right to appeal against sanctions.

    Stones and glass houses come to mind.

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  • When the NMC constituted their rules, why didn't they get them checked properly so that if it was proven a nurse was incompetent then there should be no barrier to removal from the register. This type of rebuttal makes a total mockery of nurse regulation by the NMC. A new regulatory organisation should be set up with proper legal counsel input to prevent such incompetence by regulators in the future and further tainting the reputation of nurses in the UK.

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  • Bloody unbelievable.
    Absoluately lets every incompetent nurse have a 1-2 year suspension. And then its still for debate.
    Am I right in thinking suspensions are paid there?
    The whole thing is a farce and of course needs changing.
    OMG Im sure we could all have a field day on this topic.

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  • tinkerbell

    I can't even get my head round this level of incompetence by the NMC. Which bit don't I understand, any of it.

    If whoever does get paid whilst suspended, and I have known one nurse who spent most of her career getting suspended on full pay, maybe this could be a good career move, just keep getting suspended.

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  • RCN and DoH should demand that NMC should do something about this PDQ

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  • A great pity that many seem to have no knowledge about the NMC .

    Displaying this ignorance on a public forum is I suppose par for the course for so called "professionals"

    The NMC was established by The Nursing and Midwifery Order 2001 which became effective in 2002.

    Before pasting any more stupid comments go here and educate yourselves

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  • Similar successful cases have been bought against decisions made by the GMC.

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  • Anon: 2nd Oct 12;44
    Ignorant, stupid and probably in your eyes unprofessional. Have you finished??
    I personally find you quite offensive in your approach on this. I also find it strange that you would remain anonymous whilst trying to put forward your apparent knowledge on this topic. You have said minimal but found the time to dictate your orders for us mere nurses. Not impressed! If we need to look up this information , we do not need you to tell us where to look. Thanks! .

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  • Yvonne Bates - here here!
    Anon: 2nd Oct 12:44 - you are misisng the point that all other comments have as an underlying issue - this is about patient safety and the outrage that most nurses feel when an incompetent 'colleague' is allowed to practice (badly) without consequence.

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  • tinkerbell

    Anonymous | 2-Oct-2013 12:44 pm

    I followed your advice and got myself an education.

    NMC website states:

    Our strategic vision

    Our priorities and goals for the coming five years

    Who we are

    The Nursing and Midwifery Council (NMC) is the regulator for nurses and midwives in the UK. We are independent from the government. Our statutory objective is to:

    Safeguard the health and wellbeing of people who use or need the services of nurses and midwives.

    What we do

    All of our activities are designed to help us meet our statutory objective.

    We set and monitor the national education and training requirements required to qualify as a nurse or midwife. We maintain a register of all of the nurses and midwives in the UK and we decide who is able to call themselves a registered nurse or midwife. We set requirements for nurses and midwives to help them to provide safe and appropriate care and we take firm but fair action where those requirements have not been met. If necessary, we can remove a nurse or midwife from our register or restrict their right to practise as a nurse or midwife in the UK.

    We educate and inform the public about what we do. We also communicate our message to nurses, midwives and their employers and we speak to the government and European Commission on public protection issues.

    Our job is to protect the public. We work in partnership with nurses and midwives to help us achieve this.

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  • tinkerbell

    'If necessary, we can remove a nurse or midwife from our register or restrict their right to practise as a nurse or midwife in the UK'.

    Apparently you can't!

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  • Ha Ha. The NMC big wigs should be struck off for incompetence!! Oh wait a minute..........

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  • Anonymous | 2-Oct-2013 12:44 pm

    How about making a coherent point instead of lazily pasting links? Identify your specific issues with specific comments. Or is it just easier to be insulting?

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  • As a nurse complainant against service malpractice and abuses resulting in two internal cover-up internal inquiries I was the subject of eight ludicrous and unrelated allegations of malpractice. In the absence of anything substantial my employing trust finally examined my computer-file patient accessings and determined 12 alleged inappropriate accessings which were all disproved and acknowledged. They got me by determining one accessing as being not inappropriate but too long! i.e. patient subject to seclusion abuse which I immediately complained about. The RCN was poor both in representation and subsequent advice and pulled out when I insisted on arguing with the NMC. The NMC have returned to all 12 names already junked and invented a new additional allegation..using my home computer to write my original complaints submitted openly to the trust at the time and which precipitated the first internal inquiry the results of which I rejected. My experience of the NMC is of prosecution-obsessed hired lawyers who produce shoddy cases that NMC panelists then don't read but merely take advice from..yes other NMC lawyers, keeping the whole thing going and going and going. The whole thing seems to be a prosecution culture devoted to case winning punishments and not establishing weaknesses where they exist with wise remedying. Bring back the UKCC.

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  • Tinkerbell and Mags....always a good response :)
    I amstill waiting to see if the person of interest on this comes back with a name as well as a more detailed reason to his /her total rudeness. To Anon: 3:46 I really sympathise with you and what you have gone through as there for the grace of god goes any nurse with all of the incr3ased workloads and pressures out there in todays workloads. Sadly I have to repeat you do not have a union that works to your benifit in so many ways. And it looks like it did not see you through on your fight .I comefrom Victoria Australia ( Although English ) and we have the best union worldwide....they would have seen this fight through and thats what I pay them for.


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  • George Kuchanny

    Anonymous | 2-Oct-2013 12:44 pm

    We are all waiting. Probably forever. So what was your point apart from being objectionable?

    Perhaps you can write eloquently on the problem the NMC now faces and how it can be rectified. Because, as you can see from the informed nurses comments it is a major problem. Not a little one.

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  • It is about time that the employing trusts/care homes etc took responability for it's Registants and deal with any emplyee issues internally and if the case is proved once the empoyee has excrised their right to appeal then the referral to the NMC should be made and not before, employing Trusts are too quick to involve the NMC when it has it's own Discipinary Procedures and Capability Procedures it can use not own to deal with capability issues but to also offer support and additional training to improve the performance of the employee with suspension as a neutral act. At least this way the matter will be dealt with more quickly and have Union/staff to support you locally.

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  • Not to mention the sheer torment that some nurses have had to go through. The NMC just act in their own interests...yes safeguard the public..SOD the incompetent nurse...."you have failed in your duty to act accordingly, you cannot be re programmed..EXTERMINATE !!!!

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