To what extent are regulators obliged to refer complaints to their Investigating Committee?

April 11, 2017

The recent case of R (Oriaku) v NMC [2017] EWHC 235 provides an analysis of the extent to which regulators are obliged to refer complaints to their Investigating Committee.

In the case of R (Oriaku) v NMC the Claimant was removed from the NMC register due to an incorrect entry. The Claimant was a Nigerian nurse who applied to join the NMC’s register but before doing so, was required to complete a further period of training and work in the UK in an NMC approved institution.  The Claimant proceeded to complete a placement but it was later discovered that the institution was not an NMC approved institution.  This did not come to light until several years after the Claimant completed her placement.  She was then removed from the NMC register.

The Claimant subsequently completed a nursing degree in the UK and successfully registered with the NMC. She did however complain that she had been treated unfairly compared to other registrants who had trained at the same institution as her but were not removed from the register.  The Claimant made reference to a particular Ghanaian nurse who had not been removed from the register and although she continued to complain to the NMC that she had been treated unfairly, she never presented her complaints in the form of an allegation against a particular registrant.

The Claimant proceeded to bring a claim for judicial review. Although permission for the judicial review was refused on the grounds of delay, Lang J noted that while there was no merit to the claimant’s application, “a claimant who makes an allegation to the NMC about other registrants can have sufficient standing to bring a claim for judicial review if the NMC does not process the allegation lawfully, even if it does not impact upon him, as the maker of an allegation has a recognised status within the statutory scheme governing the NMC.”

Lang J also went on to consider the substantive grounds for the application and in particular, the fact that the Claimant had claimed that the Registrar was obliged to refer her complaints directly to the Investigating Committee.

Lang J also made reference to the similarities between the NMC’s legislation and the GMC’s legislation through reference to the case of R (Pal) v General Medical Council [2009] EWHC 1061 (Admin). This High Court case determined that at the preliminary stages of a fitness to practise process, the Registrar can determine whether the information provided did in fact amount to an allegation.

The cases of R (Oriaku) v NMC and R (Pal) v General Medical Council should provide comfort to regulators that Registrars have a limited discretion to screen out complaints at the preliminary screening stage. This is obviously subject to the wording of the regulator’s individual legislation.  However, it is important to note that the provisions in relation to same are strict.  Furthermore, regulators should remain mindful that complainants may, in principal, have grounds to bring judicial review proceedings.

This article has been produced for general information purposes and further advice should be sought from a professional advisor.