Hamilton, R (on the application of) v UK Central Council for Nursing, Midwifery and Health Visiting & Anor

LORD JUSTICE SCHIEMANN: Lord Justice Sedley will deliver the first judgment.

Miss Hamilton is a state registered nurse and midwife whose registrations have been suspended on health grounds by what is now the Nursing and Midwifery Council. She is consequently unable to practise unless and until the suspensions are terminated. This appeal concerns the absence of any express power in the NMC's rules, which are made by delegated legislation, to terminate such a suspension conditionally. The only powers which the Council's Health Committee considers itself to possess upon a suspended practitioner's application are to terminate her suspension or not to do so.

The critical question for this court is whether the rule in this either/or form violates a right vouchsafed to the applicant by Article 1 of Protocol 1 to the European Convention on Human Rights and given domestic effect by the Human Rights Act 1998. For reasons to which I will come, we shall not need to decide the major preliminary point which the Secretary of State for Health has sought to raise.

The professions (I use the word deliberately) of nursing, midwifery and health visiting were collectively regulated by and under the Nurses, Midwives and Health Visitors Act 1979, which set up the United Kingdom Central Council for Nursing, Midwifery and Health Visiting (the Council). The Council had the responsibility of maintaining a professional register under section 10. Entry on the register is conditional on having fulfilled a requisite period of training. Following registration, nurses will typically go on to specialise through further study and experience. The 1979 Act is now consolidated in the Nurses, Midwives and Health Visitors Act 1997.

As amended, the 1979 Act provided by sections 12 and 12A for the making of rules. These included at the material time the 1993 Professional Conduct Rules (1993 SI 893). The rules have since been amended, but in respects to which I have now to refer to them, the amendments do not matter.

Rule 2(1)(b) permits the Council, following proper investigation, to remove a practitioner from the register because of misconduct or impaired fitness to practise. Rule 3 permits suspension of a practitioner's registration on the grounds:

In practice there is little difference between removal and suspension. Both stop a practitioner practising. Both can be reversed on the practitioner's application.

By Rule 49 the Health Committee is empowered on the Council's behalf to terminate a practitioner's suspension following examination and report by what at the time was at least two medical examiners but is now, by amendment, one. The power to restore is unstated but is implicit in the rule, which by paragraph (2) permits a practitioner whose registration has been suspended for an unspecified period to apply for the suspension to be terminated. The following paragraphs spell out the procedure to be followed; and by paragraphs (10) and (12) say what is to happen "where the Health Committee decides that the suspension shall be terminated".

Rule 49(13) allows the Health Committee to adopt such procedure as, within the rules and the requirements of natural justice, it determines. Rule 52 gives an express power to adjourn. Rules 50 and 51 allow the evidence to be updated on an adjourned hearing.

Since 1995, all registrations have been for a three-year period and have required renewal at the end of that time. Renewal is not automatic: in particular, the Council has to be satisfied that its continuing education requirements have been met. These involve five days or 35 hours of relevant learning activity during the three years prior to renewal. In addition there is a continuing professional development requirement of at least 100 days or 750 hours of nursing practice over a five-year period. A practitioner cannot build up this fund of experience while suspended.

The 1993 rules have been prospectively replaced in their entirety by an Order in Council, the Nursing and Midwifery Order 2001, made under section 60 of the Health Act 1999. At the end of the transitional period - which will be in April or May 2004 when the new rules are in place - article 29(5) will give the Health Committee of the Council power to make a 'conditions of practice' order as an alternative to striking off or suspension. This will allow conditions to be imposed on a practitioner for a specified period of not more than three years. The Health Committee will be required to review the order before its expiry.

Miss Hamilton was suspended from practice in May 1999 for an unspecified period because she had been diagnosed as suffering from bi-polar affective disorder. Following a hearing which she did not attend, the Health Committee found that her fitness to practise was seriously impaired by reason of her mental condition. She did not appeal the decision. But in May 2000 she applied for the suspension to be terminated. Following some delay, the reasons for which do not have to be explored here, the Health Committee on 19 December 2001 refused her application.

Their refusal was challenged in judicial review proceedings which were heard by Crane J. He handed down his judgment on 20 December 2002, rejecting the claim on all grounds. These had included a number of procedural issues which, it was argued, disclosed breaches of implied terms of fairness and the claimant's Article 6 rights. They also included a submission that it was contrary to Article 1 of the first protocol that the Health Committee had had no power to terminate the claimant's suspension conditionally.

Crane J refused permission to appeal. On application to this court, permission to appeal was granted on the last of these issues alone.

The expert evidence about Miss Hamilton's mental state as it stood before the Health Committee in late 2001 was not unanimous, but it was not radically divided. It included four medical examiners' reports, together with a report from the claimant's treating practitioner and one from an expert independently instructed by her. Of the medical examiners, Professor McClelland had been brought in to resolve a difference between Dr Deahl and Dr Bergmann. He alone gave oral evidence to the Health Committee.

None of the doctors considered that the claimant was currently mentally ill. All of them considered that she was at risk of relapse. Professor McClelland concluded:

The Health Committee gave its decision in these words:

It is no longer contended that Crane J was wrong to hold that a latent or dormant condition is within the suspension rule. What gives rise to the main issue before us is his conclusion:

It was apparent, when Lord Justice Ward and I gave limited permission to appeal, that more interests were capable of being engaged in the appeal issue than those of the claimant and the defendants (the second, the NMC, being the successor of the first, the UKCC). We directed accordingly that notice should go to the Department of Health and the Royal College of Nursing, and that I would deal with any application to intervene.

In the event both the Department of Health and the RCN have applied for permission to intervene, which I have granted in each case. The RCN has asked and has been permitted to put in an affidavit of its general secretary, Beverley Malone. It contains a combination of evidence and argument which to some degree cuts across the grain of the other submissions and gives the appeal a helpful added dimension. The Secretary of State has been granted permission to put in a full skeleton argument and to appear by counsel. This too has proved of value in obtaining a fuller picture of what is at issue. Both interventions show how, on issues with public and governmental ramifications, the traditional two-sided model of adversarial litigation can sometimes be inadequate. They also show that it need not be unduly costly or time-consuming to enable interventions to be heard.

The intervention of the Secretary of State has enlarged the questions before us. In sum, we have to consider the following:

These questions are distilled from those posed by the parties in argument; but for reasons to which I now turn, it will not be necessary to answer all of them.

It is convenient to deal first with the argument that in the light of the judge's findings at first instance Miss Hamilton cannot show that she has suffered any harm. The basis of this submission is a passage towards the conclusion of Crane J's judgment:

In my respectful view the question which this passage addresses is not the material one on this appeal. The question before us is not whether, assuming that the Convention right is engaged, Miss Hamilton can show that the Health Committee's decision not to reinstate her was disproportionate. It is whether, even had the rule been as flexible as she contends it should have been, there was no sensible prospect of a conditional termination. Only in that event could it be said that Miss Hamilton had lost nothing, and in my judgment it is not this case. I am far from saying that it was necessarily a case for a conditional termination of the suspension; but I find it impossible to say that a Health Committee which possessed the power to make such an order could not have done so on the evidence which it had in December 2001. Further than this no court should go: the RCN's evidence shows a strikingly high regard for the skill and competence of the Health Committee, and it is important that the latter should be left to make its own judgments.

Mr Engelman's argument of principle on Miss Hamilton's behalf is that it was neither reasonable nor Convention-compliant that the rules contained no express power to readmit a practitioner to the register on terms, and that had the Health Committee had - or appreciated that it implicitly had - this power, it is at least possible that it would have used it so as to terminate Miss Hamilton's suspension, albeit conditionally, in December 2001. Instead she has remained suspended from practice and has sought other work.

The foundation of the - secondary - argument that the Health Committee should have appreciated that it had a power to restore on conditions is that nothing in the rules excludes it and that justice may require it. Mr Engelman points to the RCN's evidence that in some cases they are able to agree with the Health Committee an informal undertaking which enables the practitioner to remain on the register. Mr Lawson for the respondents accepts, on instructions, that this happens in suspension or removal cases but not in restoration cases. Nevertheless, the fact that it happens at all indicates why the new 'conditions of practice' option has substance. I will return to the relevance of this to the issue that we have to decide.

Mr Engelman's other - and principal - way of putting his case is that registration as a nurse or midwife ranks as a possession protected by article 1 of the First Protocol to the European Convention on Human Rights. This is one of the Convention rights scheduled to the Human Rights Act 1998. It reads:

Mr Coppel for the Secretary of State has sought to take a point which was not contested below by the defendants. He argues that registration as a nurse or midwife is not a possession at all within the meaning of this article. Mr Engelman, relying principally on the decision of the Court in Van Marle v Netherlands [1986] 8 EHRR 483, strongly contests this. But we do not have to decide the point, and so have heard no argument upon it, for reasons to which I am about to come.

Before I turn to these, however, it should be said that the ability of an intervener to take a point which was available to but not taken by one of the parties, and which is destructive of the other party's case, is a problematical question which has not yet been resolved: see the different views expressed by Hale LJ and myself in Roe v Sheffield CityCouncil [2003] 2 WLR 848, §§83-7, 102-5.

The case for the respondents, supported by the Secretary of State, is that while there would be nothing objectionable in a conditional restoration rule, there is equally nothing objectionable in the rule in its present 'either/or' form. Mr Lawson points out that there is no limit in the present rules on the number or frequency of applications that can be made for the termination of a suspension. Where some conditionality is required to protect the public, the giving of reasons on suspension or on a refusal to terminate suspension will tell the practitioner what she needs to have in place when she reapplies. Here, for instance, the December 2001 decision spelt out the kind of support and monitoring Miss Hamilton needed to have in place so that she could be safely readmitted to practice. Instead, it is said, she chose a different course.

In response to Mr Engelman's useful illustration of his case by a formulated set of conditions capable of being annexed to an order terminating Miss Hamilton's suspension, Mr Lawson argues that this differs little, if at all, in its practical effect from the present system. In any event, he submits, the court cannot write in a power to impose conditions without also constructing a power and a mechanism for enforcing them. Moreover, he says, such conditions would have to be recorded on the register, forfeiting the privacy which is a hallmark of the nursing and midwifery registration system.

Mr Engelman in a powerful reply asks the pertinent question: how does a system of unenforceable undertakings and self-imposed conditions protect the public? So far as privacy is concerned, he points out that there is no reason why the conditions themselves have to be registered (compare rule 18(8)(d) in relation to cautions for misconduct). In any event, he submits, to place the onus on the practitioner of deducing and meeting the necessary conditions, and to prevent her from working while her next application works its way through the system, is to place an excessive burden on her.

The Convention jurisprudence on Article 1 of the First Protocol stresses two things. One is that there is built into the article a range of independent judgment for each state signatory as to how it may deprive citizens of their possessions in the public interest: it may make "such laws as it deems necessary" for this purpose. While therefore the Court has from time to time drawn a line and has held that a state has acted disproportionately in taking people's property, the point at which the line is drawn is quite different from that established in proportionality decisions under articles 8(2), 9(2), 10(2) and 11(2). These articles place on the court the obligation to decide whether an interference with the primary right has been "necessary in a democratic society", and a sophisticated jurisprudence, growing out of the 19th-century Prussian concept of proportionality, now exists in this regard. When, however, the Court speaks of proportionality under Article 1 of the First Protocol, its starting point is an extant judgment by the state signatory as to what is necessary in the public interest. The Court's duty is to gauge whether the state has nevertheless gone beyond what the article will tolerate. In James v United Kingdom [1986] 8 EHRR 123, the Court, while upholding the leasehold reform legislation, stressed that the expropriating measure chosen by the State must exhibit "a reasonable relationship of proportionality between the means employed and the aim sought to be realised". It was in Sporrong and Lõnnroth v Sweden (1983) 5 EHRR 35, para. 69, which the Court in James followed, that a line was drawn under this article at measures which placed on a citizen "an individual and excessive burden" (para 73). It is on this that Mr Engelman relies here. He instances its application in Immobiliare Saffi v Italy (1999) 30 EHRR 756, where the inflexible application of a priority system of law enforcement meant that the applicant's property rights were never vindicated.

Adopting for present purposes the premise, which the respondents have never challenged, that registration is or gives rise to a property right - a "possession" - protected by the First Protocol, it seems to me that Mr Engelman's well-presented argument on Miss Hamilton's behalf nevertheless fails. That was the court's joint view was announced after deliberation at the conclusion of argument on the appeal issues. It followed that it would not have been an appropriate use of the court's time to embark on the major issue which the Secretary of State had sought to raise, nor therefore on Mr Engelman's objection that an intervener should not be allowed to raise it.

It does seem to me right, however, for reasons I have touched on earlier in this judgment, to approach the legal issues on the footing that there was cogent expert evidence to the effect that Miss Hamilton was currently symptom-free but at risk of relapse, and that the consequent risk to the public was capable of being met if, but only if, acceptable counselling and monitoring measures were in place.

While it is clear that the Health Committee tries to fulfil its difficult function with a measure of flexibility, I do not consider it possible to read into the spaces in rule 49 a power terminate a suspension on express conditions. Any such condition would have to be enforceable, and there is no enforcement mechanism. Under the rules as they stand, the only way to reimpose a suspension following a breach of condition would be to recommence suspension proceedings. The Health Committee has powers of adjournment (which they do not seem to have considered exercising here) which would allow measures to be taken without an immediate refusal to terminate suspension. In fairness to Mr Engelman, the point was taken by him only because it was offered to him in argument; but on examination it does not stand up.

So the critical issue is the one to which Mr Engelman's principal submissions were directed: did the present 'either/or' system for terminating suspensions constitute a disproportionate interference with Miss Hamilton's livelihood by placing on her an excessive burden in order to secure her restoration to practice? If one were writing the scheme on a blank sheet of paper, one might well opt for the kind of system that is to be found in the new regulations (though we have not considered how a conditions of practice order will be enforced under them). But that is not the Court's function. Our task is to say whether the existing scheme, set up under powers delegated by Parliament and so representing what the State "deems necessary" in the public as well as the individual's interest, places such an undue burden on the practitioner as to make the scheme disproportionate. If it breaches the article, interesting questions will arise about the appropriate relief.

For my part I am satisfied that the present scheme, and rule 49 in particular, is compliant with Article 1 of the First Protocol. I accept that many cases, including Miss Hamilton's, are likely to be apt neither for immediate termination of the practitioner's suspension nor for indefinite refusal. Some may require the Health Committee simply to wait and see: here they will either adjourn the application or refuse it with reasons that indicate when a fresh application may sensibly be made. Others - and I am content to assume that Miss Hamilton's case is among them - may require the Health Committee only to be satisfied that the risk of relapse will be adequately contained. If there is evidence that satisfies them that it will be, they can terminate the suspension. It is, I accept, not satisfactory that the arrangements may thereafter fall apart without any referral back to the Committee; but that is not the practitioner's immediate problem. Where there is evidence that such arrangements could be but have not been made, the Committee can and perhaps generally should use its power of adjournment to enable them to be made. This will meet Mr Engelman's intelligible objection that an outright refusal will compel the practitioner to reapply, with all the loss of time and of work which that involves. In the present proceedings, however, the issues have not included any allegation of a failure to adjourn.

Once this point is reached it is not relevant - as it might be under Articles 8 to 11 - that a better, more flexible, less invasive scheme could have been devised. The present rules do in my judgment permit effect to be given to the kind of solution which would have enabled Miss Hamilton to secure the termination of her suspension from the register within a relatively short time. They are not ideal, but they are not inflexible or restrictive to an extent that takes them outside the area of proportionate responses available to the State under the First Protocol.

I would accordingly dismiss this appeal.

LORD JUSTICE SCHIEMANN: I agree.

LORD JUSTICE JACOB: I also agree.