Nurses and midwives cannot be struck off the register for incompetence under the Nursing and Midwifery Council’s current rules, it has emerged.

In a High Court case back in February a barrister representing midwife Mercy Okeke successfully argued it was unlawful to strike off a registrant unless they had first been subject to a two year suspension order.

The judge in the case, Mr Justice Leggatt, went even further in his ruling, saying in his view the wording of the Nursing and Midwifery Order 2001, the legal basis for the NMC’s powers, meant a finding of incompetence could “never result in striking off”.

He said “at the most” a registrant found to be incompetent could be suspended for up to a year. This suspension could be renewed following review, but could not be converted into a striking-off order without further findings against the individual.

The NMC shared the ruling with its fitness to practise panels at the time, but did not make any public announcement.

The situation came to the light as the case of a second nurse who challenged the order striking her off for incompetence, Ellen Agnes Murray, was due to be reconsidered by the NMC this week. Ms Murray was found guilty of a string of drug and record keeping errors while working as a nurse at Aberdeen Royal Infirmary during 2007 and 2008.

Ms Okeke was struck off after being found guilty of two charges of incompetence while working as a midwife at two London hospitals in 2006. She had been subject to a series of interim suspension orders stretching over almost four years before an NMC panel made a decision to strike her off in January 2012.

However, her barrister Michael Egan claimed the wording of the legal regulations that grant the NMC its power meant interim orders did not count.

The NMC argued that the purpose of a suspension order was to give the registrant opportunity to address their incompetence and this could be done equally well whether it was an interim order or a full sanction.

However, the judge in the case, Justice Leggatt discounted the NMC’s argument on the grounds interim orders were made without any finding of incompetence. 

Mr Justice Leggatt – who also ruled that Ms Okeke’s human rights had been breached by the amount of time it took the case to come to a hearing – said it was unfair a registrant whose case took two years or more to be heard was at risk of being struck off when a registrant whose case was heard in a more timely manner was not.

It is understood the NMC is in discussion with the Department of Health about this and other changes to its powers.