Bernadette Patricia McDaid v Nursing & Midwifery Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eder |
| Judgment Date | 14 February 2014 |
| Neutral Citation | [2013] EWHC 586 (Admin) |
| Date | 14 February 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/580/2014,Case No: CO/4038/2012 |
[2013] EWHC 586 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Eder
Case No: CO/4038/2012
Mr Mike O'Brien (instructed by The Law Partnership Solicitors LLP) for the Appellant
Mrs Anupama Thompson (instructed by NMC Regulatory Legal Team) for the Respondent
Hearing dates: 12, 13 and 15 March 2013
Introduction
This is an appeal pursuant to Articles 29(9) and 38 of the Nursing and Midwifery Order 2001 (the "2001 Order") by Bernadette Patricia McDaid against the decision of a Panel of the Conduct Competence Committee (CCC) of the Nursing and Midwifery Council (NMC), a committee established by the 2001 Order as part of the Fitness to Practice Scheme governing the professional conduct of registered nurses and midwives. There is also a related application for judicial review.
The Appellant was employed as a registered midwife by the Newham University Hospital NHS Trust. The allegations against her spanned a period between December 2008 and July 2011. The appellant was initially referred to the NMC in August 2009 by Newham University NHS Trust. A second referral was then received from Whipps Cross Hospital in March 2010. Further referrals were then made during the course of proceedings by the Professional Standards Authority (previously the Council for Healthcare Regulatory Excellence) and Angela Helleur (a registered midwife and London Local Supervising Authority Midwifery Officer).
Essentially the allegations encompassed a number of different types of conduct which were alleged to amount to misconduct. These included breach of confidentiality, dishonesty, unprofessional and aggressive behaviour and the sending of aggressive and inappropriate correspondence to various individuals.
The Appellant's case in summary
The Appellant denied all the allegations against her. In essence, the core of her complaint was and is that all these allegations were false and raised against her as a result of a conspiracy by managers in the NHS to target her as a "whistleblower" and to attempt to remove her from working in midwifery in Newham. The background to this appears from an article in the Daily Mail on 23 February 2003. In summary, the Appellant's case was and is that:
i) The whistleblowing incident involving Baby J created concern at the Newham Council and the NHS Trust, the LSA and the NMC, because it embarrassed senior officials and midwifery staff.
ii) The Appellant was seen as a threat by some colleagues because she had gone public on an issue and embarrassed them. As a former journalist she had the potential to embarrass them again.
iii) Some managers instinctively closed ranks because they felt threatened.
iv) A number of allegations were exaggerated or contrived after the whistleblowing episode.
v) Some people with whom the Appellant had a history chose the opportunity to make complaints, such as Angela Helleur.
vi) The incident with Witness A was an opportunity to register a complaint against the Appellant and even when Witness A sought to withdraw the complaint the NMC insisted on pursuing it.
vii) The Appellant had made some complaints about work colleagues and these then made counter complaints about her. The counter complaints were investigated but the complaints by the Appellant were in substance dismissed.
viii) Confusion over an incident at Whipps Cross Hospital involving a practising authorisation document became a further allegation, which could be used against the Appellant.
ix) This resulted in the process that eventually leads to the Appellant being dismissed from Newham on 30 July 2009 and barred from practising as a midwife by an interim order suspension on 3 June 2010 and at the substantive hearing starting on 28 February 2012.
x) In short, the Appellant was a whistleblower who was victimised.
The hearings in February/March 2012
The charges arising from all these referrals were joined and heard together at the final substantive hearing on 28–29 February and 1–14 March 2012.
It is common ground that the Appellant was given due notice of that hearing. Further, the week before the hearing was due to take place i.e. on 21 February 2012, there was a preliminary meeting attended by the parties including the Appellant. As stated by the Chair, the purpose of that meeting was to address management of the substantive hearing that was due to take place the following week and scheduled to last 10 days. At that meeting, the Appellant raised certain issues including one matter concerning one member of the Panel (Mr Heath) whom, she said, was inappropriate as a Panel member. She also confirmed that she was aware of the substantive hearing, that she was planning to attend and that she did not have any problems with attendance on 28 February.
However, the Appellant did not attend the hearing on 28 February — nor on the subsequent days. I will revert to this aspect further below. In the event, after a short adjournment when enquiries were made with regard to the Appellant's whereabouts and after receiving advice from its Legal Advisor, the Panel decided to proceed with the substantive hearing on 28 February in the absence of the Appellant and over the following 10 days heard evidence from a large number of witnesses — all in the absence of the Appellant.
The decision of the Panel — striking-off
Following that hearing, the Panel concluded that apart from one allegation, the remainder i.e. some 12 allegations of misconduct had been proved against the Appellant; that the Appellant's fitness to practise was impaired by reason of such misconduct, that the Appellant's misconduct was fundamentally incompatible with her continued registration as a midwife and that the only appropriate and proportionate sanction was a striking-off order. The Panel's decision and reasons are set out in detail in a letter from the NMC dated 21 March 2012. Accordingly, a striking-off order was made against the Appellant removing her name from the register of nurses and midwives. The Panel also made an interim order in the form of an 18-month suspension until the final order can come into effect in order to enable the Appellant to pursue an appeal.
The framework of this appeal
The present appeal is brought pursuant to Article 29 and 38 of the 2001 Order which provide in material part as follows:
"29(5) …the Committee shall—
(a) make an order directing the Registrar to strike the person concerned off the register (a "striking-off order");
(b) make an order directing the Registrar to suspend the registration of the person concerned for a specified period which shall not exceed one year (a "suspension order");
(c) make an order imposing conditions with which the person concerned must comply for a specified period which shall not exceed three years (a "conditions of practice order"); or
(d)…
(6) A striking-off order may not be made in respect of an allegation of the kind mentioned in article 22(1)(a)(ii) or (iv) unless the person concerned has been continuously suspended, or subject to a conditions of practice order, for a period of no less than two years immediately preceding the date of the decision of the Committee to make such an order.
…
(9) The person concerned may appeal to the appropriate court against an order made under paragraph (5) and article 38 shall apply to the appeal….
38 (1) An appeal from—
(a) any order or decision of the Health Committee or the Conduct and Competence Committee other than an interim order made under article 31, shall lie to the appropriate court; and
…
(2) In any appeal under this article the Council shall be the respondent.
(3) The Court or sheriff may—
(a) dismiss the appeal;
(b) allow the appeal and quash the decision appealed against;
(c) substitute for the decision appealed against any other decision the Practice Committee concerned or the Council, as the case may be, could have made; or
(d) remit the case to the Practice Committee concerned or Council, as the case may be, to be disposed of in accordance with the directions of the court or sheriff,
and may make such order as to costs … as it, or he, as the case may be, thinks fit."
Such appeal is conducted under CPR 52 which provides at CPR 52.11 as follows.
"1) Every appeal will be limited to a review of the decision of the lower court unless –
(a) a practice direction makes different provision for a particular category of appeal; or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
(2) Unless it orders otherwise, the appeal court will not receive –
(a) oral evidence; or
(b) evidence which was not before the lower court.
(3) The appeal court will allow an appeal where the decision of the lower court was –
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
(4) The appeal court may draw any inference of fact which it considers justified on the evidence.
(5) At the hearing of the appeal a party may not rely on a matter not contained in his appeal notice unless the appeal court gives permission."
The issues
The Appellant's notice of appeal (which was drafted by the Appellant herself) originally set out some 23 grounds for appeal. However, in the event most of these have been abandoned; and, in essence, Mr O'Brien on behalf of the Appellant has advanced four main points viz.:
i) One member of the Panel, Mr Jeffrey Heath, ought properly to have...
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