EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Hardie Lord Wheatley	[2012] CSIH 24 XA2/12 OPINION OF THE COURT delivered by LADY PATON in appeal by THE COUNCIL FOR HEALTH CARE REGULATORY EXCELLENCE Appellant; against A decision of the Conduct and Competence Committee of the Nursing and Midwifery Council dated 2 December 2011 in the case of Margaret Mathieson Harley, Registered Nurse _______

Appellant: O'Neill, Solicitor Advocate; Brodies LLP

First respondent (NMC): No appearance

Second respondent (Miss Harley): No appearance

1 March 2012

[1] Miss Harley's registration lapsed shortly after the decision of the Conduct and Competence Committee on 2 December 2011. Accordingly if this court were to remit the case back to the NMC, there could be no further proceedings in that forum as there would be no registrant. That being so, this court has concerns about exercising a power to impose a sanction which would now be incompetent for the NMC itself to impose. In that context, Miss O'Neill high-lighted an apparent defect in The Nursing and Midwifery Council (Education, Registration and Registration Appeals) Rules Order of Council 2004 (SI 2004/1767), in particular in paragraph 6(6), which should perhaps be followed up.

[2] In the result, we are persuaded that we should, in terms of section 29(8)(b) and (c) of the National Health Service Reform and Health Care Professions Act 2002, allow the appeal, quash the decision complained of, and substitute therefor a finding of impairment of fitness to practice.