Nurse wins appeal after being struck off following hearing in her absence

A judge in the Court of Session quashed the decision by the Nursing and Midwifery Council after upholding the appellant’s complaint of “procedural unfairness”.

Lady Paton, Lady Clark of Calton and Lord Malcolm heard that the appellant “LM” faced allegations regarding her fitness to practise, namely that she had taken strips of Tramadol from the hospital where she worked for her personal use on three occasions between April 2012 and August 2013.

A panel of the Conduct and Competence Committee of the Nursing and Midwifery Council held a substantive hearing at which the charges against the registered nurse were found proved.

The panel was aware that the appellant suffered from a history of “anxiety and depression” and that she had been prescribed Tramadol. They were also aware that she was pregnant and had given birth shortly before the hearing, which she did not attend and at which she was not represented.

But the committee found that she was dishonest in her conduct in that she knew the medication belonged to the hospital and that she did not have permission to take it.

The committee also found that on one occasion in August 2013 was on duty while “unfit for work” due to her consumption of the medication.

Following the substantive hearing on 22 to 24 July 2015, the appellant was made the subject of a six-month suspension order, but under and in terms of Article 30(1) of the Nursing and Midwifery Order 2001, the committee required to review the order before its expiry.

The appellant was notified and given information about a review hearing in a letter dated 17 December 2015, which included the reasons the panel gave for making the order and stated that the committee had the power to make a striking off order.

The letter and accompanying documents were sent to the appellant who to the knowledge of the committee had been ill, was unrepresented and had not participated in the earlier proceedings.

At the review hearing on 21 January 2016, which was also held in the absence of the appellant, the committee made a striking off order to delete her name from the Nursing and Midwifery Council register.

The appellant challenged the decision taken at the review hearing to proceed in her absence and make a striking off order, arguing that the respondent’s committee “erred in law” by proceeding to determine the issue of sanction in her absence.

Counsel made no criticism of the proceedings or the decision making at the substantive hearing, and accepted that the appellant’s fitness to practise remained impaired at the date of the review hearing.

However, he criticised the form and content of the correspondence sent to the appellant about the review hearing and the failure to highlight to a nurse who had been ill and was unrepresented that the review hearing might result in the very serious decision to remove the appellant from the register.

He relied on the seriousness of the sanction; the committee’s knowledge that the appellant had “mental health and addiction difficulties”; the “lack of clarity” in the correspondence; and the fact that at the substantive hearing the committee had accepted that there were “strong mitigating factors” in her favour.

In these circumstances it was argued that there was a “procedural error” by the committee which led to “unfairness” and the court should provide a remedy.

The appeal judges observed that the committee ought to have been aware that the proceedings were “potentially very serious” for the appellant, who had a history of illness and personal circumstances which might bear upon her ability to participate in the review hearing, at which she was unrepresented.

Delivering the opinion of the court, Lady Clark of Calton said: “Having regard to the terms of its decision we are not satisfied that the committee took these important factors into account when deciding to proceed to strike her off in her absence.

“We consider that the form and content of the information which accompanied said letter was not effective to explain to a party litigant the nature of the review hearing and that she was potentially at risk of being struck off the register, not least when previously she had been told that the most severe sanction would be disproportionate.

“When we assess the decision making of the committee and take into account the circumstances to which we refer, we consider that there is merit in the appellant’s complaint of procedural unfairness. For the reasons given we consider that the appeal should be allowed.

“Accordingly we quash the decision of the committee dated 25 January 2016 in which the committee made a striking off order; we remit the case to a differently constituted committee to reconsider de novo what sanction, if any, should be imposed upon the appellant and direct the committee to provide the appellant with an opportunity to make submissions in mitigation prior to any decision about sanction.”