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NMC's striking off ban unlikely to be overturned till 2015


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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Readers' comments (20)

  • Absolutely ridiculous situation. It should be amended now

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  • michael stone

    'remarkable' and 'very unsatisfactory' are not quite the words which spring to my mind, about this !

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  • Incompetence could be construed as someone who needs more training. Therefore a problem of incompetence is rectifiable in eyes of the law. It might be better to use terms like negligent, and dangerous practice.

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  • This is an extremely worrying situation as we know that it takes a lot of evidence and many steps anyway before a nurse is actually struck of the NMC register. We need to find out how the GMC can strike a Doctor off their Register and ensure that a reputable and trustworthy nursing coucil can do the same for nurses found to be incompetent. It sounds as if the NMC has been using guidelines that mean nothing in real terms. Does this indicate another level of incompetence in the NMC I ask myself? I feel this is just another nail in the already half closed coffin for nursing to be further devalued and disregarded as a profession. A measure being forced in the media by this Govenment to discredit and alienate the NHS from the public. I fear this will lead more SUI's and bad nursing care continuing and further Mid Staffs situations.

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  • there seem to be entirely different rules for the GMC and NMC. How come a GP was allowed to voluntarily deregister before an FTP?

    'NHS forced me out for blowing the whistle on GP'

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  • Michael Bond

    And I'm paying my (increased) registration fee for this? Surely, this is a core functional requirement of the NMC in order to protect the public?
    I think I'm too angry to comment constructively on this.

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  • This is unbelievable, not least because there is consideration of the nurse's human rights in terms of how long a case takes to come to the hearing stage! What about the person who has been at the receiving end of their incompetence?!! Like Michael Bond, I am just too angry to say anymore.

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  • Tiger Girl

    You really couldn't invent this stuff as fiction, could you?

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  • Anonymous | 8-Oct-2013 12:22 pm
    The new rules under the way the NMC now handles fitness to practice,Is that a member can actually de register, to save going through the process of the NMC trial. A good thing if it gets them off the register, and the money is saved from hard working nurses, registration fee's being wasted in this way. The fact that it has been highlighted that it was against a nurses human rights regarding the time it took for the case to be heard, is a breakthrough for those who are innocent of any wrong doing,and been maliciously referred, we all know of cases where this has happened and have their career's ruined, as once cleared are unable to pick up there career again, as they havent got the relevent practice hours and study hours required for registration.

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  • Well it appears we all have a case for claiming a refund on our registration fees back to 2001, since the Regulatory Body has failed in its function to such a degree that they are not providing the service we have paid for, i.e. protecting the public through effective regulation of the profession. Of course the reality is that it is just a tax for staff to pay for practicing, so much for paying the fee for life to go on the register.

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