An “extraordinary” ruling banning the Nursing and Midwifery Council from striking off nurses for incompetence could take almost two years to overturn, Nursing Times has learnt.
Last week it emerged the regulator had been advising its fitness to practise panels since February that they could not legally remove nurses and midwives found to be incompetent from the register.
The advice followed a ruling by a High Court judge that 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”.
Nursing Times understands the NMC is in discussion with the Department of Health about its predicament and the need for statutory changes to its powers. However, it is unlikely any such changes could become law before 2015.
Sally Brearley, chair of the Prime Minister’s Forum on Nursing and Care Quality, described the situation as “remarkable”.
“Patients and the public would think incompetence was absolutely grounds for striking off. It urgently needs to be sorted out because otherwise people are being falsely assured,” she told Nursing Times.
The ruling came about after midwife Mercy Okeke, who was struck off for incompetence in January 2012, appealed the NMC’s decision. At a High Court hearing in February, her barrister 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 that in his view the rules governing the NMC meant “at the most” a registrant found to be incompetent could only be suspended for up to a year.
The court’s decision means the NMC can currently only impose a series of yearly suspensions for registrants found guilty of incompetence.
For example, after an initial 12 month suspension period comes to an end, the NMC must consider whether a new order needs to be made suspending the registrant for a further year to protect the public. The ruling also applies to nurses who would have been struck off on health grounds.
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. The judge 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.
A second nurse, Ellen Agnes Murray, has also challenged the order striking her off for incompetence. Her case is due to be reconsidered by the NMC next week. Ms Murray was found guilty of a string of drug and record keeping errors while working as a nurse at Aberdeen Royal Infirmary during 2007 and 2008.
Harry Cayton, chief executive of the Professional Standards Authority, the overarching body that regulates the NMC, described the current situation as “very unsatisfactory”.
He said the judge’s ruling was a “narrow interpretation” of the laws affecting the NMC. “To a member of the public it’s an extraordinary ruling. It needs to be clarified,” he told Nursing Times.
The Law Commission, an independent body set up by parliament to review and recommend reform of the law, has been reviewing the NMC’s powers since March 2012.
Mr Cayton noted that the commission was expected to publish a draft bill next year and the government had previously indicated it would take it forward to become law before the general election in May 2015.
A spokeswoman for the regulator said Ms Okeke and Ms Murray were so far the only registrants to have appealed a striking off for incompetence in the past two years.
In 2012-13 NMC panels made findings of incompetence against 127 registrants, equivalent to about 9% of all cases that go to adjudication.
However, the NMC spokeswoman highlighted that in many of these cases there may also have been a finding of misconduct, which remain grounds for striking off a registrant.
Equally, in other cases the incompetence will not have been considered serious enough to warrant a striking off order and the nurse or midwife could have been subject to another sanction, such as a conditions of practice order.
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