Inflexible policies

If a woman was dismissed from employment for being pregnant, lawyers would cry discrimination. But what if a woman was dismissed from a course of study for the same reason?

Similarly, if a student was thrown out of university without any warning, education lawyers around the world would cry breach of contract or breach of fundamental public law rights. But what if the university said it had no choice in the matter?

These are just two of the situations that
have faced student nurses and have resulted in significant proposals that could lead to a landmark change in the regulatory system.

Five-year completion rule

The nursing profession is regulated by the Nursing and Midwifery Council (NMC).

In order to enter the profession, a BSc (Hons) Nursing degree is required. The current policy requires students to complete their course within five years (seven years for part-time study), as provided for in the NMC’s ‘Standards for pre-registration nursing education’ (2010). The same timelines apply for pre-registration midwifery courses.

What is startling about the NMC’s five-year rule
is that it does not provide for any exceptions, for any student, regardless of what circumstances
the student has found themselves in. The NMC’s consultation on time limits for completion of education states: ‘The current requirements do
not allow for any flexibility beyond the maximum timescales outlined above. Students who do not complete within these timescales would currently be required to start their training again from the beginning, irrespective of their personal circumstances. We do not have any discretion
to waive these limits.’

Unlawful and discriminatory?

Such an inflexible policy immediately seems to contradict arguments that lawyers, especially public lawyers, regularly make: blanket policies are unlawful, we argue – what about the individual circumstances of the case? What about the importance of discretion?

There is also a further issue: what if a student’s course completion is delayed for reasons relating to disability? What if a student becomes pregnant and needs to take time out from their course?
Such characteristics are given protection from discrimination by the Equality Act 2010. Other issues might also occur: what if a student has to repeat a placement, but the university takes time
in finding an available placement and this leads
to the course completion date being delayed?

As a result of the NMC’s time limits for completion, many student nurses who have
been terminated from their course for overshooting the five-year study period, through no fault of their own, could argue that they have been discriminated against by their higher education institutions. Such students might also argue that they have been discriminated against by the NMC, their regulatory body.

We acted for a full-time nursing student enrolled on the three-year Diploma of Higher Education in Adult Nursing. She became unexpectedly pregnant twice while registered on the course (taking the maximum maternity leave as provided for by law), and as a result, when she returned to her course, swiftly found herself the recipient of a letter declaring that her course was terminated as she would not be able to complete within five years.

Following two dismissed internal appeals and
a ‘partly justified’ decision found by the Office of the Independent Adjudicator, we put our client’s situation to both her university and the NMC. Noting our client’s situation, the NMC responded by issuing its consultation paper ‘Consultation on the time limits for completion of education across all NMC education standards’, which will run until midday on 12 March 2015. The NMC’s current proposal is to remove the mandatory five-year registration period to allow for unforeseen interruptions, and for ‘the management of completion timescales to be devolved to approved education institutions’.

Public protection

The NMC notes that students might face interruptions of study for reasons such as pregnancy, illness, and caring for family members. To this, as specialists in education law, we could add a number of other examples from the many issues we see that can affect and delay a student’s studies.

The NMC also notes that its five-year rule
is not one practised in other healthcare sectors:
‘Other health professional regulators such as the General Medical Council and the Health and Care Professions Council do not specify a timescale for completion of their pre-registration programmes. The management of interruptions to, and completion of programmes, is the responsibility of the education institution.’

The removal of this five-year rule would not, the NMC states, impact on the public. The student would still be required to meet all the proficiencies and competencies of the course, but the time limit for completion would be placed in the hands of the university. The NMC’s consultation paper says: ‘Education providers would be required to demonstrate that they had robust procedures in place. This is to ensure that students completing programmes were fully competent to enter the register, regardless of the length of time taken
to complete their studies.’

The NMC is of the view that the removal of the five-year rule will not impact public protection because:

• ‘A student’s entry to the register would depend on them meeting all of the requirements of our registration standards and completing a full registration programme.’
• ‘The approved education institutions would, as now, have to be assured that in awarding a qualification a student has demonstrated the necessary contemporary knowledge and skills required in that programme. The student would still need to demonstrate safe and effective practice to meet our registration criteria.’

We agree with that view and very much
welcome this consultation. No evidence exists to demonstrate that the five-year rule is a necessity, let alone that it protects the public. But there is ample evidence of students needing, for valid reasons, more time to complete their degree.
To have an inflexible rule on completion time risks being discriminatory and contrary to public law principles. It cannot be right to have a blanket and inflexible policy that means a student could lose out on the chance to complete their degree and enter the profession for reasons that might have been beyond their control.

We have seen a number of cases where a student has been seriously disadvantaged by
the application of such a rule, losing out on their degree and being left in a position where litigation is the only option – yet, of course, the courts cannot award a degree. Students in such cases want a practical remedy rather than a financial one. To have to restart a course from the beginning is often not a viable option, for this again requires funding and would cause a significant delay to the student entering the profession and commencing work. If you consider the potential absurdity of a student’s needing only a few days or a month to complete their course but instead having to start the whole three-year programme again, just because five years and one day have elapsed, the requirement to start the course again does not seem proportionate.

In our view, the proposals are hugely important and must be implemented. SJ

Rishi Mital, pictured, is head of department for further and higher education and Matthew Wyard is an in-house advocate at Match Solicitors

@MatchSolicitors