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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hamilton, R (on the application of) v UK Central Council for Nursing, Midwifery and Health Visiting & Anor  EWCA Civ 1600 (23 October 2003)
Cite as:  EWCA Civ 1600
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE CRANE)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LORD JUSTICE JACOB
|THE QUEEN ON THE APPLICATION OF HAMILTON||Appellant|
|(1) THE UNITED KINGDOM CENTRAL COUNCIL|
|FOR NURSING, MIDWIFERY AND HEALTH VISITING|
|(2) NURSING AND MIDWIFERY COUNCIL||Respondents|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
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MR R LAWSON (instructed by Penningtons, London aec4n 8pe) appeared on behalf of the Defendant
MR J COPPEL (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Secretary of State
Crown Copyright ©
LORD JUSTICE SEDLEY:
"(a) that her fitness to practise is seriously impaired by reason of her physical or mental condition; or.
(b) that it appears necessary to do so as an interim measure
(i) for the protection of the public; or
(ii) in the practitioner's interests."
"….I have to be strongly of the view that whilst Miss Hamilton is well and it augurs well for the future, it would be better for her own self-interest in her health management and her illness management, just as with any other illness, even though the illness is in remission, to be in professional follow-up"
"Miss Hamilton, the Committee has decided that it is unable to accept your application to end the suspension of your registration. Our reasons are that we are persuaded that the weight of medical evidence indicates that you do suffer from a psychiatric disorder, and what gives us particular concern is that you lack the insight that would enable you to recognise and manage your condition, should you have a relapse. The medical advice is that it would benefit you to be in formal contact with the psychiatric service, and we consider this to be a minimum requirement before any further application for the termination of your suspension is made.
Having said that, we hope that in time you will be restored to full health, and when you and your medical advisers believe that you are fit and ready, we should be very pleased to consider a further application to end the suspension of your registration."
"In my view there was sufficient evidence before the Committee that the condition was one which seriously impaired her fitness to practise. They were entitled on the evidence to find that the claimant lacked the insight to recognise and manage her condition if she had a relapse. She made it plain in answer to sympathetic questioning that she was unlikely in fact to recognise a relapse or, unless obliged to do so, to seek or follow psychiatric advice."
The questions for the court
A. Is it open to the Health Committee under rule 49 to terminate a suspension conditionally?
B. If not, is article 1 of the First Protocol engaged by a suspension from the nursing and midwifery registers?
C. If so, is it violated by the want of a power to terminate a suspension conditionally?
D. If the answer to A or C is yes, is Miss Hamilton the victim of any material breach?
E. If she is, what relief if any ought to be granted?
"81. It is in my view arguable that in some circumstances the absence of any power to impose conditions might in some cases lead to a dilemma for the Committee, that is, a need to choose between continuing a suspension and its termination on conditions, in circumstances in which conditions would be a viable option. Mr Lawson submitted that although conditions can be imposed in analogous situations in relation to other professions, the numbers of nurses and midwives makes such a provision inappropriate. I do not have the evidence to enable me to form a view about that. However, I think it right to point out that the matter may require consideration if such consideration has not already been given to it.
82. However, in the particular circumstances of this case I do not consider that the lack of power to impose conditions led the Health Committee to adopt a less than proportionate response. The Claimant did not place before the Committee any plan to monitor or supervise her condition, although the medical opinion even of Dr Penrose, whose report she had obtained, was that that topic should be addressed. Even after questioning by the Committee, it was clear, as the Committee found, that she lacked the necessary insight. Although at certain points of the hearing she was prepared not to rule out medical intervention, it became clear that she was not prepared to countenance any such intervention as was in fact likely to be available. They said in terms that formal contact with the psychiatric service was a minimum requirement before any further application."
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived on his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other penalties."
(Appeal dismissed; Appellant's costs to be the subject of assessment; application for permission to appeal to the House of Lords refused).