A threat of imminent disciplinary chaos throughout the nursing and medical professions has been lifted by a judgment in the Scottish Court of Session, giving a not quite clean bill of health to procedures followed by the nurses' regulatory body, the UKCC.
But the decision is certain to have far-reaching implications for the way nurses, doctors and others are treated when allegations are made against them.
The case involved a complaint that the United Kingdom Central Council for Nursing, Midwifery and Health Visiting was acting as investigator, prosecutor, judge and jury in its handling of allegations of professional misconduct.
The Royal College of Nursing petitioned the Scottish courts for a judicial review to test whether this infringed Article 6 of the Human Rights Act guaranteeing the opportunity of a fair trial. The UKCC froze disciplinary action against other nurses in Scotland until the outcome was known.
If the RCN had won the case outright, there is little doubt that the disciplinary bodies in every other part of the UK health service would have felt obliged to suspend hearings pending clarification in the courts of appeal.
Lord Mackay of Drumadoon heard the evidence in the Scottish outer sessions in the week before Christmas and delivered his judgment last Thursday.
He said the UKCC procedure was not an infringement of the right to a fair trial because a nurse who was disciplined by the council's professional conduct committee could appeal to the court of session in Scotland or the high court in England, Wales and Northern Ireland. That meant that no nurse could be struck off the professional register without the opportunity of a fair trial (at appeal).
But Lord Mackay said his conclusion would have been different if he had been required to decide whether the UKCC part of the procedure gave nurses adequate protection. The council's professional conduct committee did not constitute an independent and impartial tribunal, meeting all the requirements of Article 6(1) of the Human Rights Act, when viewed on its own (without consideration of the appeal process).
The test case was brought by the RCN on behalf of Marguerite Tehrani, a nurse charged with misconduct for failing to be in attendance at a nursing home she was in charge of in Scotland for a minimum of 35 hours a week and for failing to maintain adequate staffing levels. She denies misconduct and the judge will on Friday consider further procedure .
Tom Bolger, RCN assistant general secretary, says: "It is now important that the UKCC reviews its procedures as a matter of urgency in the light of the judge's observations. We must ensure that patients are put first and properly protected, while ensuring that nurses are treated fairly."
A spokeswomen says the RCN will be looking for separation of the UKCC's investigatory and adjudicatory systems.
Sue Norman, UKCC chief executive, says she is pleased with the outcome of the case. "Our priority now is to rearrange the postponed hearings in Scotland in order to meet our obligations both to the public, whom we protect, and to practitioners, for whom we ensure fair treatment. We will study very carefully, and as a matter of urgency, the judge's observations."
