Author: Matthew Cassells, Senior Lawyer, Nursing and Midwifery Council (NMC)

Registered professionals have an obligation to engage with their regulator. This case highlights the importance of constructive engagement and the risks a professional runs where they fail to do so.

The facts

Patient A, who resided in France, retained Mr Golden’s services as an independent midwife.

After their professional relationship ended, Patient A raised concerns about the care she had received. While investigating these concerns it became apparent that Mr Golden was not correctly registered with the French authorities nor was he insured.

He was, in the terms used by the Court, a ‘black-market midwife operating outside the law on his own poorly drafted terms’ who seemingly disregarded his responsibilities ‘as if they were nothing more than chewing gum on his shoe’.

Despite regularly corresponding with the NMC’s staff asserting ‘dishonesty, perjury, unprofessionalism and unhelpfulness’, Mr Golden ‘intentionally refused to take part in the process of preparing for and attending the final hearing’.

The Fitness to Practise Committee (FtPC) proceeded to hear the case in Mr Golden’s absence and, having heard live evidence from a number of witnesses, found the majority of charges proved.

Mr Golden sporadically corresponded with the NMC/FtPC by email whilst the hearing was ongoing but did not attend the hearing at any point, nor did he respond to the charges until the penultimate day. His fitness to practise was found to be impaired and his name was struck from the register.

The appeal

Mr Golden appealed to the High Court.

Mr Golden’s submissions were described by the Court as tending towards ‘grandiose statements’ which he was then ‘[un]able to substantiate’.

The fundamental issue on appeal was what, if any, obligation there is on a regulator to attempt to prepare a registrant’s case where that individual is not engaging, either at all or constructively.

The Court considered Thorneycroft v Nursing Midwifery Council [2014] EWHC 1565 (Admin), General Medical Council v Adeogba & Visvardis [2016] EWCA Civ 162 and El-Huseini v General Medical Council [2022] EWHC 2022 (Admin) before concluding 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 FTPP does not have to guess what the practitioner wants to put before the FTPP 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.'

The Court upheld the panel’s decision to strike Mr Golden’s name from the register.

The main takeaways

Regulators are always keen that professionals under investigation should engage constructively and at an early stage with the issues of regulatory concern. Where they do so, it is generally possible to understand and take account of context, narrow the issues, expedite the case and, sometimes, arrive at agreed disposals.

This case illustrates the implications of registered professionals taking what the Court described as an ‘obstructive and disruptive’ approach to regulatory investigations and not attending the substantive hearing, either in person or through Counsel. Professionals who act in this way are likely to find little sympathy from the Court if they subsequently seek to challenge the hearing outcome on appeal.