Oriaku, R (On the Application Of) v Nursing And Midwifery Council [2017] EWHC 235 (Admin)

[2017] EWHC 235 (Admin)Case No CO/2390/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Birmingham Civil Justice CentreDate 16 February 2017
Before
MRS JUSTICE LANG DBE
Between
THE QUEENClaimanton the application ofClaimantCHINWE CECILIA ORIAKUClaimantNURSING AND MIDWIFERY COUNCILDefendant
Becket Bedford (instructed by Dominion Solicitors LLP) for ClaimantCatherine Callaghan (instructed by Field Fisher LLP) for DefendantHearing Hearing date: 2 February 2017
Judgment Approved
[1]The Claimant seeks judicial review of the Nursing and Midwifery Council’s (“NMC”) failure to refer to its Investigating Committee her allegation that the entries on to the NMC register of other nurses were fraudulently procured or incorrectly made, and the failure of the Investigating Committee to consider her allegation and give her a reasoned decision.[2]On 25 November 2016, HH Judge Barker QC sitting as a Deputy High Court Judge ordered that the application for permission be listed as a “rolled-up hearing” together with the substantive hearing.

Facts

[3]The Claimant originates from Nigeria, where she qualified as a nurse in 1988. She moved to the United Kingdom (“UK”) in 2005, and sought to practise as a nurse here. Because she had trained overseas, she was required by the NMC to complete a period of supervised practice at a venue audited and approved as a suitable learning environment before she could be eligible for registration.[4]Whilst still in Nigeria, the Claimant entered into an agreement with a recruitment agency which offered to arrange a period of supervised practice for a fee. The recruitment agency was run by one Patience Ajayi, who organised supervised practice for the Claimant at Ross Wyld Nursing Home, which was not an approved institution. Ms Ajayi claimed to be an accredited mentor for overseas nurses, recognised by the NMC. She assessed the Claimant and submitted an Overseas Application Reference Form on her behalf, which wrongly stated that the Claimant had undertaken her supervised practice at Mornington Hall Nursing Home (“Mornington”), which was an approved institution operated by BUPA. Ms Ajayi was employed by BUPA as Home Manager of Mornington.[5]The NMC accepted the Claimant’s Application as valid and duly entered her on to the NMC register on 30 March 2006. On 17 October 2006, Ian Ireland of BUPA Care Homes wrote to the NMC informing it of the potentially fraudulent activities of Ms Ajayi in providing false reference forms for a number of individuals, including the Claimant.[6]The NMC investigated the activities of Ms Ajayi. By February 2010, the NMC had determined that there were sixteen applicants who were listed as completing placements with Ms Ajayi at Mornington. Details of each of the applicants were adduced in evidence before me, with their names redacted. The NMC’s investigation showed that: i) Eight applicants (identified as C, D, E, F, G, H, I, J) had never been registered with the NMC. The NMC had not accepted their placements with Ms Ajayi as valid, because Mornington’s accreditation had expired at the relevant dates. ii) Two applicants (identified as A and B) were correctly registered. Their placements with Ms Ajayi were not accepted by the NMC, because Mornington’s accreditation had expired, but they then went on to complete satisfactory periods of supervised practice with other providers, and were correctly registered as a result. iii) Two applicants (identified as K and L) were registered on the basis of correct information, but their registrations had lapsed by February 2010. iv) Four applicants (identified as M, N, O and the Claimant) were incorrectly registered on the basis of false declarations by Ms Ajayi, and remained registered at the time of the investigation. Those four (including the Claimant) were referred to the Investigating Committee. M died before the procedures were completed. The other three were removed from the register by the Investigating Committee (N on 3 January 2013 and O on 4 January 2013).[7]On 4 November 2010, the Claimant was informed that her case was to be referred to the Investigating Committee. She was provided with relevant documentation, including an internal NMC email dated 22 February 2010 stating that, during the course of the investigation into Ms Ajayi, it had emerged that she made false declarations in respect of sixteen applicants, and “Registrations have checked all sixteen but only 4 need to be made into new matters”i.e. new cases to be sent to the Investigating Committee. Earlier emails in the chain set out the details for each applicant and the reasons why no further action was required, but these additional emails were not sent to the Claimant. They contained confidential information relating to other applicants.[8]On 4 January 2013, there was a hearing before the Investigating Committee to determine the charge against the Claimant that she had incorrectly procured an entry on the NMC register by stating that she had carried out a placement at Mornington from December 2005 to March 2006. The Claimant was legally represented and admitted the charge. The Panel took into account that there had been no concerns expressed about the Claimant’s nursing practice, and that she had been deceived by Ms Ajayi. However, the Panel concluded that the Claimant had not met the requirements for registration; her entry on to the register was obtained incorrectly; and so her name had to be removed from the register.[9]The Claimant had a right of appeal to the County Court against this decision, but did not exercise it. She does not challenge the decision in these proceedings.[10]On 8 February 2013, the Conduct and Competence Committee of the NMC found that Ms Ajayi had dishonestly made false declarations regarding the completion of periods of supervised practice, and she was struck off the register.[11]In 2014 and 2015, the Claimant and her solicitors corresponded with the NMC requesting that the Claimant be permitted to re-register without satisfying the English language test. In this context, they alleged that the NMC had been selective and unfair in removing the Claimant from the register when others among the group of sixteen were permitted to remain on the register. This point was first made on 27 October 2014, and was based on the information disclosed in November 2010 in the NMC internal email dated 22 February 2010. It was repeated on many occasions thereafter: 6 February 2015; 17 March 2015; 28 October 2015; 14 December 2015; 18 January 2016 and in a pre-action letter dated 26 March 2016.[12]In response, the NMC wrote on 3 February 2015 confirming its earlier advice to the Claimant that the English language test had become a mandatory requirement since 2005, with which the Claimant had to comply. On 12 March 2015, the NMC wrote confirming that “a full investigation took place into all nurses affected by Ms Ajayi’s false declaration”. When the Claimant’s solicitor asked in a letter of 17 March 2015 whether this meant that only four individuals were incorrectly registered by reason of Ms Ajayi’s conduct, the NMC replied on 14 May 2015 agreed, stating:
“Mrs Oriaku’s eligibility for NMC registration was reviewed as part of a wider case involving a registrant who had provided false declarations for a number of nurses confirming that they completed the periods of supervised practice required for NMC registration. While a number of individuals were investigated in this regard only four, including Mrs Oriaku, were removed from the register. It is therefore entirely possible that Mrs Oriaku will be acquainted with colleagues who, having had their documentation reviewed, were entitled to remain on the register.”
[13]On 11 September 2015, the Claimant withdrew her application for registration, as she was not willing or able to take the English language test.[14]On 28 October 2015 the Claimant made a complaint to the NMC, alleging that the NMC had applied a double standard and treated her unfairly by removing her from the register, and not others. She said that other nurses who had been supervised by Ms Ajayi were still registered and practising. She named one such nurse as “Yvonne”, with whom she was paired throughout the supervision practice at Ross Wyld Care Home. She stated that Yvonne was Ghanaian; that she did not know her NMC number but she provided her Royal College of Nursing (“RCN”) number.[15]There followed a considerable amount of correspondence between the Claimant and the NMC, as the complaint progressed through the NMC’s procedures. The NMC stated in a letter of 3 December 2015:
“….you were removed from the NMC register following an investigation into a wider case relating to false declarations made for a number of nurses applying for registration. In your letter you have made reference to the other individuals who were involved; however, as I am sure you can appreciate we are unable to comment on their cases.”
[16]On 7 January 2016, the NMC responded to the Claimant’s further criticisms of its complaint-handling process. On 11 February 2016, in response to further correspondence from the Claimant, the NMC informed the Claimant that, as she had exhausted the complaints process, further letters could not be replied to.[17]On 26 March 2016, the Claimant sent a pre-action protocol letter, which the NMC responded to on 15 April 2016. The claim for judicial review was issued on 10 May 2016.[18]The Claimant was admitted back on to the NMC’s register in 2016, after completing a UK nursing qualification course, which meant that she did not have to take the English language test.

Grounds for judicial review

[19]The Claimant’s statement of grounds stated:
“1. By her claim the Claimant seeks judicial review of the Defendant’s failure, contrary to article 22(1)(b) and 22(5)(a) of the Nursing and Midwifery Order 2001, to refer her allegation to the Investigating Committee that the entry of certain registrants (“the Registrants”) on the Defendant’s register of nurses was fraudulently procured or incorrectly made. 2. Further or alternatively the Claimant seeks judicial review of the failure of the Defendant to reach a decision pursuant to article 26(2) and 26(5) of the Nursing and Midwifery Order 2001 as to whether the Registrants entry in the Defendant’s register was fraudulently procured or incorrectly made and judicial review of the Defendant’s failure to notify the Claimant of its decision, giving its reasons. 3. The Claimant made the allegation by letter dated 28 October 2015 to the Defendant’s Complaints Manager in respect of at least eleven registrants, including one Ghanian registrant named Yvonne, the Claimant’s former colleague, whose names and pin numbers the Defendant has withheld from the Claimant. 4. The Registrants have been known to the Defendant since February 2010 following the referral of one Patience Ajayi to the Defendant’s Conduct and Competence Committee. Patience Ajayi was alleged to have falsely declared that she oversaw the completion by some sixteen overseas nurses, including the Claimant, of overseas adaptation programs in supervised nursing homes. 5. The Claimant’s allegation is that by reason of Patience Ajayi’s false declarations the Registrants entry on the register of UK nurses was fraudulently procured or incorrectly made. 6. By reason of the Defendant’s continuing refusal to divulge the identities of the overseas nurses whose adaptation programs, to the knowledge of the Defendant, Patience Ajayi declared falsely to have supervised, the best particulars the Claimant can give of the Registrants is that they are identifiable to the Defendant by reference to the Defendant’s internal email of 22 February 2010 sent by one Martin McElvanna to the Defendant’s Jamie Barge …”
[20]The relief sought, in section 7 of the claim form, and amplified in paragraph 24 of the statement of grounds, was as follows:
“In these premises the Claimant seeks an order (i) to require the Defendant to refer the claimant’s allegation that the persons, whose overseas application reference forms were falsely completed by Patience Ajayi and who were known to the Defendant as appears from its internal email of 22 March 2010, to the Investigating Committee for decision on whether their entries in the register were fraudulently procured or incorrectly named forthwith or as soon as reasonably practicable; (ii) to require the Defendant’s Investigating Committee to reach a decision thereon; and (iii) to require the Defendant’s Investigating Committee notify the Claimant in writing of its decision, giving its reasons.”
[21]On 30 January 2017 (3 days before the hearing), Mr Bedford filed and served his skeleton argument which stated:
“6. However, in the light of the reasons explained at §§41 - 44 of the detailed grounds of resistance [45] - [46] dated 20 December 2016 and the detailed evidence of Frances Cottle §§10 - 27 [57] - [62], Mrs Oriaku is content not to pursue a claim for the defendant’s continued failure to refer the persons identified by the 22 February 2010 email to the Investigating Committee. 7. Nevertheless, Mrs Oriaku pursues her claim for review in respect of the continued failure of the Defendant to refer her allegation that an entry on the NMC register was falsely procured by Patience Ajayi, for the said Yvonne.”
[22]Ms Callaghan filed and served a supplementary skeleton argument in response, stating:
“2. The Claimant’s skeleton argument (para 6) expressly abandons the Claimant’s claim in respect of the NMC’s failure to refer the persons identified by the 22 February 2010 email to the Investigating Committee. That is the entirety of the Claimant’s pleaded claim: see remedy section of Claim Form and paragraphs 6 and 24 of Statement of Facts and Grounds.” “4. The Claimant now purports to confine her claim for review of the NMC’s failure to refer her allegation that an entry on the NMC register was falsely procured by Mrs Ajayi in respect of “Yvonne”
. As already explained in the NMC’s first skeleton argument, in so far as “Yvonne” is not one of the nurses referred to in the Defendant’s internal email of 22 February 2010 and is not known to the Defendant, her case falls outside the scope of the pleaded claim. In so far as Yvonne is one of the nurses referred to in the Defendant’s internal email, then the claim has been abandoned and in any event is not arguable for the reasons set out in the NMC’s first skeleton argument.”[23]In my view, Ms Callaghan’s careful analysis was correct – Mr Bedford’s concession meant that he had effectively abandoned the entirety of his pleaded claim. Mr Bedford made no attempt to re-formulate his claim or amend his pleading to overcome this difficulty. However, I have gone on to consider the merits of the claim to avoid the possibility of further litigation by the Claimant on the basis that she did not agree with the manner in which Mr Bedford presented her claim.

Delay

[24]CPR 54.5(1) provides that a claim for judicial review must be filed promptly and in any event not later than 3 months after the grounds to make the claim first arose.[25]In section 3 of the claim form, the Claimant identified the NMC’s letter of 11 February 2016 as the decision to be judicially reviewed. In my view, it is clear that the final decision letter in the complaints procedure was 7 January 2016, not 11 February 2016. By not issuing the claim until nearly 4 months later, on 10 May 2016, the Claimant was not acting promptly and exceeded the 3 month longstop.[26]Moreover, the decisions which in truth she seeks to challenge, concerning the treatment of the other applicants, were made as long ago as 22 February 2010 and communicated to her by letter of 4 November 2010. I do not accept the Claimant’s submission that this case can properly be characterised as a continuing omission to act by the NMC. The chronology shows that the NMC conducted an initial investigation into those who had been supervised by Ms Ajayi, which was completed by 22 February 2010. At that stage it was concluded that further action was only required in respect of four of the sixteen applicants. Final decisions were reached in relation to the remaining three in January 2013 (one sadly died). So the NMC reached decisions at specific dates in relation to all sixteen applicants identified; it was not a continuing process.[27]The appropriate forum in which to make her allegations about unfair and selective treatment, in comparison with other applicants, was at her hearing before the Investigating Committee on 4 January 2013, but the Claimant failed to do so, even though she was legally represented. In particular, she did not raise the case of her colleague “Yvonne”. By Article 38 of the Nursing and Midwifery Order 2001, she had a right of appeal against an order removing or amending an entry in the register to the County Court, which had power, among other things, to quash the decision appealed against or substitute any other decision the NMC could have made. However, she chose not to exercise her right of appeal.[28]It was not until 2014 and 2015 that the Claimant and her solicitors made these complaints about unfair and selective treatment. On reading the correspondence, it seems that these complaints were initially made as part of a negotiating strategy to try to persuade the NMC to re-register the Claimant, without requiring her to sit the new English language test. Contrary to the Claimant’s submission to me, there is no suggestion that she was acting as a whistle blower in the public interest.[29]A whole year after the Claimant’s solicitor first made these complaints (on 27 October 2014), the Claimant made a formal complaint about them to the NMC, on 28 October 2015. In my judgment, this is an illustration of the practice which was criticised by Burton J. in R (G) v Secretary of State for Justice [2010] EWHC 3407 (Admin) where he agreed with counsel’s submission that “it cannot be that a complainant can create his own reviewable decision, simply by asking for a decision to be made which has already either been made or not made many months or years before” (at [15]). I do not consider that the conclusion of the complaints procedure gave rise to a fresh reviewable decision: the NMC was simply reiterating its earlier decisions, of which she was already aware.[30]In my judgment, the Claimant has not put forward any valid explanation for the delay. Nor has she provided any good reason to extend time. She has now successfully re-registered with the NMC by another route, without having to take the English language test. Applying section 31(6) of the Senior Courts Act 1981, I consider it would be substantially prejudicial to the other applicants, and detrimental to the good administration of the NMC, to revoke the decision made on 22 February 2010, re-investigate the foreign nurses who were supervised by Ms Ajayi (including “Yvonne”), and refer them all to the Investigating Committee, after a delay of nearly 7 years.[31]For these reasons, I refuse permission on the grounds of delay.

Standing

[32]The NMC submitted that the Claimant did not have a sufficient interest in the matter to which the claim related, and therefore permission should be refused under section 31(3) Senior Courts Act 1981. The Claimant did not contend that the outcome of this claim will have any effect on her own removal from the register, which she did not challenge. She had now successfully re-registered. She had no personal interest in the NMC’s handling of the other applicants’ cases, or its decision not to refer them to the Investigating Committee.[33]The Claimant submitted that she had standing to bring the judicial review claim because she had made allegations to the NMC which, under its statutory procedures, it was required to process. Her contention was that the NMC had failed to process her allegations lawfully and she was entitled to challenge this by way of judicial review as a whistle blower.[34]Approaching this as a matter of principle, I consider that 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 directly upon him, as the maker of an allegation has a recognised status within the statutory scheme governing the NMC. In this particular case, the Claimant’s case has no merit, but that is a separate issue from the question of standing. Therefore I find that the Claimant has standing to bring this claim for judicial review.

The statutory framework and guidance

[35]The NMC is governed by the Nursing and Midwifery Order 2001 (2002 No. 253) (hereinafter “the Order”), made by Her Majesty in Council and approved by a resolution of each House of Parliament under section 62(9) Health Act 1999.[36]The NMC is required to maintain the register of qualified nurses and midwives, and prescribe standards of proficiency and requirements as to good health and character in order to ensure applicants are capable of safe and effective practice: Article 5(1) and (2).[37]Article 9 sets out the conditions for registration. Under Article 9(2)(a), an applicant for registration must satisfy the Registrar that she holds “an approved qualification”.[38]Under Article 13(1)(d), a person can be regarded as having an “approved qualification” if she has an approved qualification awarded in the UK or she has undergone training in nursing or midwifery outside the UK, and either the NMC is satisfied that the qualification attests to a standard of proficiency comparable to that attested to by an approved qualification awarded in the UK, or the NMC is not so satisfied but the applicant has undergone in the UK or elsewhere such “additional training or experience” as satisfies the NMC, following any required test of competence, that she has the requisite standard of proficiency for admission to the register.[39]At all material times until October 2014, pursuant to guidance issued by the NMC, this requirement could be satisfied by completing a period of supervised practice at an audited and approved venue. Since 1 October 2014, overseas applicants have instead been required to pass a competence test.[40]Article 22(1) of the Order provides, so far as it material:
“Allegations This article applies where any allegation is made against a registrant to the effect that- (a) his fitness to practise is impaired by reason of – (i) misconduct, … (b) An entry in the register relating to him has been fraudulently procured or incorrectly made.”

This article applies where any allegation is made against a registrant to the effect that-

[41]Article 22(5) provides, so far as is material:
“When an allegation is made to the Council or any of its committees, as soon as reasonably practicable after receipt of the allegation in the form required by the Council, the Council shall refer it – (a)where it is an allegation of the kind mentioned in paragraph (1)(b), to the Investigating Committee; …”
[42]Article 22(6) empowers the NMC to investigate an entry in the register and refer the matter to the Investigating Committee of its own volition, without any allegation having been made.[43]Article 26 sets out the powers of the Investigating Committee. Article 26(1) provides that the Investigating Committee shall investigate any allegation which is referred to it in accordance with Article 22.[44]Article 26(2) provides that:
“Where an allegation is referred to the Investigating Committee — (a)the Council shall without delay notify the person concerned of the allegation and invite him to submit written representations to the Committee within a prescribed period; (b)the Committee shall where it sees fit, notify the person making the allegation of the representations mentioned in sub-paragraph (a) and invite him to deal within a specified period with any points raised by the Committee in respect of those representations; (c)the Committee shall take such other steps as are reasonably practicable to obtain as much information as possible about the case; (d)the Committee shall consider, in the light of the information which it has been able to obtain and any representations or other observations made to it under sub-paragraph (a) or (b), whether in its opinion— (i)in respect of an allegation of the kind mentioned in article 22(1)(a), there is a case to answer, and (ii) in respect of an allegation of the kind mentioned in article 22(1)(b), whether the entry concerned has been fraudulently procured or incorrectly made.”
[45]Under Article 26(5), if the Investigating Committee is satisfied that an entry in the register has been fraudulently procured or incorrectly made, it shall notify in writing both the person concerned and the person making the allegation, if any, of its decision, giving reasons.[46]Article 26A empowers the NMC to make rules providing for the Registrar or other officers to exercise the functions of the Investigating Committee under Article 26(1), 2(b) – (d), (5), (6) and (8).[47]Article 26C empowers the NMC to make rules providing for the Registrar or any other officers to exercise the NMC’s functions under Article 22. Pursuant to the Rules, the Registrar is authorised to exercise the NMC’s functions under Article 22.[48]Pursuant to rule-making powers in the Order, the NMC made the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (hereinafter “the FTP Rules 2004”) which were approved by the Privy Council.[49]Rule 2A is headed “Initial consideration of allegations”. Rule 2A(1) provides that:
“(1)Where the Registrar considers that an allegation falls within article 22(1)(b) of the Order, the Registrar must refer the allegation to the Investigating Committee for consideration under rule 5.”
[50]Rule 2A(4) provides:
“(4) The Registrar may carry out any investigations as in the Registrar's opinion are appropriate to the consideration of— (a)whether or not the allegation falls within article 22(1)(a) of the Order; (b)whether or not the allegation falls within article 22(1)(b) of the Order; (c)the registrant's fitness to practise; or (d)the registrant's entry in the register.”
[51]Rule 2A(3) requires the Registrar to notify the maker of an allegation under Article 22(1)(a) if he considers that an allegation does not fall within Article 22(1)(a). There is no parallel provision in respect of an allegation under Article 22(1)(b).[52]Rule 2A came into force on 9 March 2015, but the evidence of the NMC, which I accept, was that, at all material times, it operated a form of triage under which the Registrar considered whether or not the allegation fell within Article 22(1)(a) or (b) – and carried out any appropriate investigations to that end – before deciding whether to refer the allegation to the Investigating Committee.[53]Rule 3(1) provides that where an allegation is referred under rule 2A(1), the Registrar shall, in accordance with Article 26(2)(a) of the Order, notify the registrant of any allegation referred to the Investigating Committee, by serving a notice of referral upon her. The notice of referral must be accompanied by any documents relating to the allegation that have not previously been disclosed to the registrant: rule 3(2).[54]By rule 3(3) the Registrar must give notice of the referral to the registrant’s employer or any other person for whom she provides services in relation to nursing; any other body with which she is registered to provide health or social care professions; and the Secretary of State for Health.[55]Rule 5 sets out the procedure to be followed by the Investigating Committee where it is seized of an allegation relating to a fraudulent or incorrect entry in the register. In particular, the Investigating Committee must consider the allegation at an oral hearing if the registrant requests it or the Registrar considers it desirable: rule 5(1). Further, the Investigating Committee must determine the matter in accordance with the procedure set out in Part 5 of the Rules, which includes provision for the hearing to take place in public, the registrant to be represented and heard by the Committee, and for the order of proceedings (including the admission of alleged facts, and the finding of facts): see rules 19, 20 and 24.[56]The NMC has published “Fraudulent and incorrect entry guidance” (“the Guidance”), which sets out the procedure to be followed when it receives information suggesting an entry in the register is fraudulent or incorrect. The Guidance was first published on 25 June 2015 and was subsequently re-issued (in materially identical terms) on 5 April 2016. Published guidance for fraudulent and incorrect entry cases was not in place prior to those dates. However, the evidence of the NMC, which I accept, was that it operated a similar process at the dates relevant in this case.[57]Paragraph 5 of the Guidance explains that the NMC investigates fraudulent and incorrect entry cases in two stages: an initial stage, pursuant to rule 2A of the FTP Rules 2004; and a determination stage, pursuant to rule 5. The Guidance provides that at the initial stage, the Registrar will assess the available information and decide whether to carry out an investigation into the nurse’s entry on the register: paragraph 11.[58]Paragraph 12 of the Guidance states: “The investigating Registrar will usually carry out a full investigation if the matter may potentially amount to an allegation that an entry was fraudulently or incorrectly made. When the investigation is complete, the investigating Registrar should consider whether the matter amounts to an allegation and if so, refer it to the IC”.[59]The Guidance explains at paragraph 14 that in some circumstances, the Registrar may decide not to refer an allegation to the Investigating Committee, if for example, there is no suggestion that an entry was fraudulently obtained, the error or inaccuracy has since been remedied, or the Registrar has subsequently entered the nurse on the register based on correct information. In other words, if upon initial investigation it is clear that the allegation does not fall within the ambit of Article 22(1)(b), it is dismissed at that stage, and is not referred to the Investigating Committee. Submissions and conclusions[60]The Claimant submitted that, on a proper construction of Articles 22 and 26, the NMC must immediately refer any allegation of fraudulent or incorrect entry on the register to the Investigating Committee to investigate and determine. The Council, acting through its Registrar, had no power to conduct any initial investigations, nor to conduct a “triage” to filter out cases where there was no proper basis for referral e.g. where the person was not even on the register. Insofar as the FTP Rules 2004 purported to grant such powers to the Registrar, they exceeded the scope of the 2001 Order and so were unlawful. It followed that the Registrar ought to have referred all applicants ostensibly supervised by Ms Ajayi at Mornington to the Investigating Committee in 2010, and those who had not been referred in 2010 ought to have been referred in 2015 in response to the Claimant’s letter of complaint.[61]In my judgment, the Claimant’s submission was misconceived. Under Article 22(5), the NMC must refer an allegation only where it is “in the form required by the Council” and is “of the kind mentioned in paragraph (1)(b)”, namely an allegation “against a registrant” to the effect that an entry in the register relating to her has been fraudulently procured or incorrectly made. Thus, the allegation must relate to an individual nurse who is on the register at the time of the complaint. The NMC has no power to investigate or take action against persons who are not “registrants”. Furthermore, the allegation must provide some basis for the assertion that the registrant’s registration was fraudulently procured or adequately made, so that the NMC is satisfied it is at least capable of coming within Article 22(1)(b).[62]Under the FTP Rules 2004, the NMC has delegated to the Registrar the function of undertaking the required initial assessment. Under Rule 2A, it is the Registrar’s function to consider whether an allegation “falls within article 22(1)(b) of the Order”. If it does, it must be referred to the Investigating Committee for consideration: see Rule 2A(1). If the allegation does not fall within article 22(1)(b), it is dismissed. The Registrar has an express power to investigate the registrant’s entry in the register or whether the allegation falls within Article 22(1)(b), before making the referral decision: see Rule 2A(4). The Guidance clarifies that the Registrar may decide not to refer a matter to the Investigating Committee where it is clear that it has no foundation.[63]The Courts have considered the scope of such powers exercised by other regulatory bodies under comparable schemes. In R (Pal) v General Medical Council [2009] EWHC 1061 (Admin), the High Court considered the meaning and scope of the Registrar’s triage powers under rule 4 of the General Medical Council (Fitness to Practise) Rules Order of Council 2004 and section 35A of the Medical Act 1983. The statutory framework differed from the NMC’s in several respects but the wording of rule 4 was almost identical to the wording in rule 2A of the FTP Rules 2004. Collins J. held at [32]-[33] that the Registrar’s function of considering whether an allegation (that a registered doctor’s fitness to practise is impaired) “falls within” section 35C of the Act required the Registrar to consider and decide whether, if proved, it was capable of supporting a finding of impaired fitness to practise. Collins J. also held at [35] that the Registrar’s investigatory powers permitted (and may in some circumstances require) the Registrar to carry out enquiries to verify one way or another straightforward matters on which the allegation depended. Collins J.’s findings concerning the Registrar’s role at the initial stage were approved by the Divisional Court in R (Remedy UK Ltd) v General Medical Council [2010] EWHC 1245 (Admin) at [17]-[20]. In my judgment, these principles are applicable to the NMC statutory scheme, and the differences between the General Medical Council scheme and the NMC scheme are immaterial in this respect.[64]I accept the NMC’s submission that, under the statutory scheme, the Registrar has to exercise her own independent judgment and discretion in each case to determine whether there is an allegation qualifying for referral to the Investigative Committee, and to carry out such investigations as she considers appropriate to determine that issue. I also accept the submission that these triage powers are appropriate and necessary to ensure that the NMC does not act outside its statutory powers or expend its resources on complaints that are misconceived, and that registered nurses are not required to deal with spurious allegations. It is noteworthy that where the Registrar does refer such an allegation to the Investigating Committee, she must also give notice to the registrant’s employer/service provider. In Pal, Collins J. accepted the submission that this could be prejudicial to the individual practitioner, and the triage procedure operated by the Registrar was a safeguard against referral of complaints which had no substance (at [19] to [22]).[65]Under the FTP Rules 2004, the Registrar is not required to notify the maker of an allegation of a decision that the allegation does not fall within Article 22(1)(b). As rule 2A(3) expressly imposes such a requirement in respect of decisions under Article 22(1)(a), and not Article 22(1)(b), I do not consider that any such requirement can properly be implied.[66]In my judgment, the Registrar’s investigation and conclusions in respect of the sixteen applicants identified in the email of 22 February 2010 was a lawful exercise of her powers under the Order and the FTP Rules 2004. Ten of the applicants were not registered at the relevant time, and so could not be the subject of regulatory procedures by the NMC. Two of them had successfully completed a legitimate supervised practice unconnected with Ms Ajayi. The remaining four were referred to the Investigating Committee. Indeed, the Claimant has now withdrawn her challenge to these decisions.[67]The Claimant submitted that her formal complaint in her letter of 28 October 2015 constituted an “allegation” that an entry in the register had been fraudulently procured or incorrectly made, within the meaning of Article 22(1)(b) of the 2001 Order. However, the letter was clearly expressed as a complaint about the Claimant’s own treatment, in comparison with others, rather than a new allegation of fraudulent or incorrect entries on the register. Indeed, the Claimant referred in her letter to the NMC’s earlier investigation and decisions in respect of other applicants supervised by Ms Ajayi. In my judgment, the obvious starting point for the NMC was to consider its earlier investigation and decisions, and I consider it was entitled to rely upon them in answer to the Claimant’s complaint. The Registrar was not required to refer the other twelve applicants to the Investigating Committee in response to her complaint in 2015, as the decision not to refer had already been made in 2010, for valid reasons.[68]The NMC could not say for certain whether or not “Yvonne” was one of the sixteen applicants identified in the email of 22 February 2010. The records showed that none of the sixteen applicants gave the name “Yvonne” to the NMC. It was, of course, possible that the Claimant’s colleague was using the name “Yvonne” informally, in place of her given name, and that she was one of the sixteen.[69]The difficulty the NMC has had in searching for “Yvonne” was described by Frances Cottle, Senior Lawyer in the Fitness to Practise Directorate at the NMC, in her second witness statement. There was a substantial number of registrants (currently about 690,000 nurses and midwives on the register). In the year 2015/2016, the NMC received about 30,000 initial applications for registration, of which approximately 7% came from applicants trained outside the EEA. Searches of the register were carried out using a registrant’s personal identity number (PIN) and/or surname. The NMC had an electronic database of its registrants, on which it was possible to search for first names, but there were over 150 entries for the name “Yvonne”. In order to make a reliable identification from these entries, it would be necessary to have the applicant’s address and date of birth as well the first name, if neither the surname nor the PIN was known. It was not possible to search by nationality or place of work or place of training.[70]The NMC did not have access to the RCN’s database of members. The RCN is a representative body for nurses, whose role is to promote and protect their interests. The NMC is the regulatory and disciplinary body for nurses. They are entirely separate from one another. Disclosure from the RCN’s database would be governed by principles of data protection, privacy and confidentiality.[71]It appears that the Claimant has deliberately withheld information about “Yvonne” from the NMC. At the hearing, she gave instructions to Mr Bedford that she had telephoned “Yvonne” the previous week, and “Yvonne” told her where she was currently working. In my view, as they have maintained contact over the many years since they trained together, the Claimant could reasonably have been expected to have obtained “Yvonne’s” surname, address and place of work and passed this information to the NMC, together with “Yvonne’s” telephone number. Her failure to do so raised many unanswered questions.[72]I accept the NMC’s submission that the Registrar has never had sufficient information about “Yvonne” to undertake the triage process. Her identity was not known. It was not known if she was indeed a registrant, or whether she was in fact registered on the basis of Ms Ajayi’s misrepresentations. The Registrar could not therefore be satisfied at the initial stage that the Claimant’s allegation in respect of “Yvonne” fell within Article 22 or rule 2A(1), and therefore the Registrar was not under a duty to refer the allegation to the Investigating Committee.[73]In the light of my conclusion that the Registrar acted lawfully in not referring the Claimant’s allegation to the Investigating Committee, this ground cannot succeed.

Conclusion

[74]For the reasons set out above, permission to apply for judicial review is refused, and the claim is dismissed.