The importance of engaging meaningfully and constructively in Fitness to Practise Proceedings

The recent case of Golden v Nursing and Midwifery Council [2023] EWHC 619 (Admin) highlights the need for regulated practitioners to engage with their regulator in a constructive way and the risks they face should they fail to do so.

The facts

Mr Golden, a midwife registered with the Nursing and Midwifery Council (NMC), was engaged by a patient (Patient A) to provide private midwifery services in France.  When their contract ended, Patient A referred Mr Golden to the NMC, as she had concerns about treatment he provided.

During the course of the NMC’s investigation it became clear that Mr Golden was not appropriately registered or insured to provide midwifery services.  He was, in the Court’s judgment, “working on the black-market in France as an unlicensed, uninsured midwife, under his own poorly drafted contradictory and unclear contractual terms, creating an obvious risk to women in a vulnerable position.”

Mr Golden engaged during the investigation but not in a way that was constructive to the issues at hand.  At one stage he provided a document “which was both obstructive and disruptive but did not answer the questions asked.”  He sent correspondence to the chief executive of the NMC setting out “a list of complaints and criticisms which were both obstructive and disruptive and he failed to provide his own witness statement or witness statements from his witnesses or any documentary bundle. Instead he required to call the senior management of the NMC as witness at the final hearing.”  None of these helped to progress his case or defence.

Mr Golden was reminded on several occasions of the dates of the final hearing, but failed to attend, asserting he needed reasonable adjustments made due to disabilities and that the length of the hearing was a breach of his human rights.

The final hearing proceeded in Mr Golden’s absence and most of the charges were found proved. His fitness to practise was found impaired and he was struck off.

The appeal

Mr Golden appealed to the High Court on various grounds. The Court was highly critical of his submissions and conduct during the proceedings.

The Court looked at proceeding in the absence of the practitioner and confirmed there were various factors that a fitness to practise panel should take into account when considering whether it is fair to proceed in the absence of the practitioner, namely:-

• It is of prime importance to consider fairness to the practitioner;
• Fairness also must be considered to the regulator, which has statutory functions to protect the public;
• There are similarities to be drawn between criminal and regulatory proceedings, but these similarities should not be taken too far, especially because a regulator does not have the power to compel the practitioner’s attendance;
• It would be counter to the protection, promotion and maintenance of the health and safety of the public if a practitioner could effectively frustrate and disrupt the process and successfully challenge a refusal to adjourn when the practitioner has deliberately frustrated or failed to engage in the process;
• The decision to proceed in the practitioner’s absence must be considered in light of the duty on professionals who are subject to a regulatory regime to engage with their regulator and regulatory proceedings.

The Court also looked at the leading authorities on what is expected of a regulator when a practitioner fails to engage with the fitness to practise proceedings. It concluded that “where a practitioner fails to engage with the NMC in preparation for the final hearing, fails to provide a bundle of documents to be relied on or witness statements for the hearing and fails to attend, the fitness to practise panel does not have to guess what the practitioner wants to put before the fitness to practise panel for the final hearing. Nor does the NMC have to sift through the historic case correspondence or the historic documents previously sent by the practitioner during, for instance, the interim suspension hearings and appeals from interim orders, to construct evidence files which the practitioner himself has not identified, provided or prepared for the final hearing. This is so when the practitioner is refusing to engage contrary to his duty to cooperate and in particular when he is being positively obstructive or disruptive to the process.”

The Court dismissed Mr Golden’s application to overturn the decision to strike him off.

Comment

The Court’s guidance on proceeding in the regulated practitioner’s absence is a useful reminder that although fairness to the practitioner is of paramount importance, the role of a regulator is also significant. A regulator’s role is to protect the public from harm, and a practitioner’s attempts to frustrate the process are not going to be looked upon favourably.

This is also a stark reminder of the importance of regulated professionals to engage with their regulator in a meaningful and constructive way when facing fitness to practise proceedings. Likewise, a regulator is not expected to ensure the practitioner’s case is before the fitness to practise panel if the practitioner has made no attempts to do so themselves. An appeal Court is not going to look favourably on someone who has been “obstructive and disruptive” to the process and then seeks to have a panel’s decision overturned.

Regulated professionals should therefore ensure they engage with their regulator at an early stage and as constructively as possible to ensure they are able to put forward the best case.  This is best achieved by instructing specialist solicitors at the outset, who will communicate with the regulator on a professional's behalf - and in a manner which best advances their defence.

Call us on 020 3504 3182 or email to find out how our specialist regulatory solicitors can help if you are facing regulatory proceedings, investigation, or any other form of regulatory action.