Kings View successfully overturned a nurse’s striking off order using an NMC internal mechanism for review. This is thought to be the first application in many years.
The nurse in question engaged in the original fitness to practise hearing, however the Panel found that she lacked insight and imposed a suspension order for 9 months. The nurse did not attend the review of the suspension order and failed to engage at all with the NMC and as a result was then struck off.
Kings View applied on the grounds that there was relevant evidence which was not before the review panel, and which would have had an important influence on the case. The NMC conceded the point, and a new review panel took place. Under Article 33, this review panel heard the case using the same process as if this was an application for restoration. The test for restoration being whether the applicant is a fit and proper person to practise in the profession. Our client said:
Being under review by a nursing council is an exceedingly stressful and worrisome time. I turned to Catherine Stock for help. Catherine’s meticulous attention to detail, her incredible knowledge of the law surrounding nursing and her wealth of experience eased my burden.
Furthermore, her kindness, sensitivity and support helped me to keep fighting for the result I deserved.
Thank you wholeheartedly, Catherine. I would highly recommend you to anybody dealing with the ‘fitness to practice’ journey.
NMC Review of Strike Off
If a nurse, midwife, or nursing associate has been struck off the NMC Register, that striking-off order lasts at least five years, during which time the nurse, midwife, or nursing associate, may not apply to go back on. This application can only be made after a minimum of five years and is known as an application for restoration. There is an exception to this rule and a nurse, midwife or nursing associate can request a review of the striking-off order on the grounds that new, relevant evidence has become available since the order was made. An application for a review of a striking-off order can be made at any point during the life of the order.
This differs from the right to appeal the strike off order which must be done within 28 days of receiving the panel’s decision.
The right to request a review is laid down in the Nursing and Midwifery Order 2001 Article 30, paragraph 7 which outlines:
“Where new evidence relevant to a striking-off order becomes available after the making of the order, the Fitness to Practise Committee may review it and article 33(4) to (8) shall apply as if it were an application for restoration made under that Article.”
When the nurse, midwife or nursing associate makes an application to review a striking-off order, the NMC will consider the merits of the application. If the evidence submitted as part of the application is evidence that was not available at the time of the original hearing and could have made a real difference to the panel’s final decision, then the NMC will refer the application to a Fitness to Practise Committee and that hearing will follow the same procedure as that of a restoration hearing.
The general principles regarding consideration of fresh evidence were considered in the case of the GMC v Adeogba  EWCA Civ 162 at para 24. The Court of Appeal examined the fresh evidence principles in the context of regulatory proceedings with discussion of the well-established principles explained in Ladd v Marshall  1WLR 1489 Lord Denning:
“First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trials
Secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive
Thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”
Preparing for the hearing
- What have you been doing since you were struck off?
- How do you feel about the incidents that led to your name being removed?
- How can you be sure something similar will not happen again?
- What would you like to do if your application is successful?
- How do you plan to get back into professional practice?
- What have you done to keep up to date with developments in the profession?
- Do you think you need professional updating? If so, how do you plan to get it?
The above list is not exhaustive and careful planning is required. With our help and guidance, you are significantly more likely to achieve a successful outcome. The panel powers are, that they can:
- Refuse the application and the nurse, midwife or nursing associate will not be able to make a further application for another year.
- Grant the application subject to the nurse, midwife or nursing associate satisfying the requirements relating to additional education or training and experience.
- Impose conditions of practice order for up to three years which will come into effect once the nurse, midwife or nursing associate has successfully completed the relevant education and training requirements and the readmission process.