Importance of legal representation before regulatory bodies

Importance of legal representation before regulatory bodies

Published:

Author: Charlotte Ellis

The appellant was a midwife employed at an NHS hospital, who faced 13 allegations at a Conduct and Competence Committee of the Nursing & Midwifery Council (NMC). McDaid v Nursing & Midwifery Council [2013] EWHC 586 (Admin).

The allegations, which spanned three years, concerned dishonesty, breaches of confidentiality, unprofessional and aggressive conduct, and the sending of inappropriate and aggressive correspondence whilst at work.

At a preliminary meeting of the NMC, the appellant raised an issue about the constitution of the proposed Conduct and Competence Committee, saying one of the committee members was an acquaintance of one of the people who had made false allegations against her.

The constitution of the committee was not changed, however, and it proceeded in Ms McDaid's absence, although it was shown that she had been given appropriate notice of the hearing under the Nursing & Midwifery (Fitness to Practise) Rules 2004.

The committee found 12 out of the 13 allegations faced by Ms McDaid proved, and as a result her fitness to practise as a midwife was impaired.

Ms McDaid was struck off the register of nurses and midwives, and the committee also imposed an 18-month suspension, prohibiting Ms McDaid from practising as a nurse or midwife until the final order came into effect. This covered the period of any appeal brought by Ms McDaid.

Ms McDaid appealed the committee's decision on the grounds that: 

  • a letter dated 18 March 2009 from her hospital employer, signed by the head of employment and addressed to Ms McDaid, had not been before the committee, thus undermining its decision to find allegation 2 proved; which, in turn, affected the committee's judgement concerning the other allegations 
  • the committee member with a potential conflict of interest should have recused himself 
  • the hearing should not have proceeded in her absence 
  • the hearing was conducted unfairly 
  • the 12 allegations found proved by the committee could be explained, and that without the benefit of the explanation from Ms McDaid, the committee's determinations were unsafe and should be overturned

The appeal was allowed.

It was clear on the evidence that the letter dated 18 March 2009 had not been introduced as evidence before the committee. The High Court reiterated the proper procedure relating to the introduction of new evidence, in that any attempt to introduce new evidence should be made by application on notice to the other side, supported by a witness statement explaining the relevance of the evidence and why new evidence was not introduced 'in time'. However, the High Court, whilst stating that it was 'regrettable' that this procedure had not been followed in this case, it could be explained in part by Ms McDaid's lack of legal representation.

The High Court made it clear that the letter dated 18 March 2009 was a 'crucial' document that threw new light on the allegations faced by Ms McDaid, and she was given exceptional leave to rely upon it.

In making this decision, the High Court quashed the decision of the Conduct and Competence Committee to strike Ms McDaid off the register of nurses and midwives, and remitted the matter to be heard again by the committee.

The High Court also stated that the matter had to be remitted to a freshly constituted committee, because the first one had made determinations without considering all of the evidence, as it had not seen the letter dated 18 March 2009.

The High Court held that a new committee would be able to address the allegations in the light of all the evidence - including the letter dated - without being prejudiced, as it would approach the issues with fresh eyes.

All the other grounds of appeal made on behalf of Ms McDaid were rejected.

The case illustrates that whilst the High Court has some sympathy with unrepresented registrants, the decision to allow this appeal on the basis that new evidence - not relied upon at the substantive hearing - should have been seen by the original committee, is unusual.

The High Court made it clear that its decision was exceptional, and that the usual procedure relating to the introduction of new evidence should be followed.

McDaid also highlights the importance of legal representation when regulatory bodies commence an investigation. Had Ms McDaid sought legal advice at an early stage and attended the Conduct and Competence Committee hearing with her legal team, the letter dated 18 March 2009 would have been submitted as evidence, and the appeal against the decision to strike her off the register may have been avoided.

Contact

If you are being investigated by the Nursing & Midwifery Council, or any other regulatory body for alleged impairment of fitness to practise on the basis of misconduct, performance or ill health, please contact our regulatory team.