Christopher Perry v The Nursing and Midwifery Council
| Jurisdiction | England & Wales |
| Judge | Sir Stanley Burnton,Lord Justice Davis,Lord Justice Hughes |
| Judgment Date | 28 February 2013 |
| Neutral Citation | [2013] EWCA Civ 145 |
| Docket Number | Case No: C1/2012/2334 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 February 2013 |
[2013] EWCA Civ 145
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MRS JUSTICE THIRLWALL DBE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hughes
Lord Justice Davis
and
Sir Stanley Burnton
Case No: C1/2012/2334
Ian Wise QC and Stephen Broach (instructed by Royal College of Nursing Legal Services) for the Appellant
Robert Englehart QC (instructed by Nursing and Midwifery Council) for the Respondent
Hearing dates: 21 February 2013
Introduction
This is an appeal from the judgment of Thirlwall J rejecting the appellant's claim that his hearing before the Investigating Committee of the Nursing and Midwifery Council at an Interim Orders hearing, and the order made by that Committee to suspend him from practice as a nurse for a period of 18 months (unless within that time the case against him was concluded by one of the NMC's Practising Committees), infringed his Convention rights under Articles 6 and 8.
The judge however concluded that an order suspending the appellant from practice was unnecessary, and that an order imposing conditions on his practice as a nurse would be sufficient and appropriate. She made an order under Article 31(12) of the Nursing and Midwifery Order 2001 terminating the appellant's suspension from practice on 20 September 2012 or such earlier date as the NMC convened a Committee to consider the imposition of suitable conditions of practice. There is no appeal against that part of the judge's order.
This appeal raises a question of general importance as to the procedure of an Investigating Committee of the NMC (and similar committees of other professional regulatory bodies) when considering whether to make interim orders pending the substantive hearing of a complaint against a member of the profession.
The facts
The relevant facts were concisely set out by the judge in her judgment:
2. The applicant is a 53-year-old registered mental health nurse. He qualified in March 2001. From early 2004 he had been employed by the Cwm Taf Health Board as part of the Youth Offending Service in Swansea. In August 2010 he began working with a 30-year-old mother of 3 children, Mrs J. In October 2010 Mrs J made a complaint to the Health Board about the applicant. It is his case that this was precipitated by his having told her that he needed to distance himself from her. She alleged he had acted improperly towards her. Her allegations and the applicant's responses to them were considered at a disciplinary hearing of the Health Board on the 13 th June 2011. The applicant was summarily dismissed. In a letter of 20 th June 2011 the disciplinary officer wrote "I carefully considered all the evidence and information presented to me and concluded that you had fundamentally breached your contract of employment and your actions constituted gross misconduct. On this basis I had no alternative but to dismiss you without notice or payment in lieu of notice. Due to the seriousness of your actions I will be referring your case to the Nursing and Midwifery Council". That referral took place by letter of the 11 th July 2011. Some 4 months later, on the 9 th November 2011 the NMC wrote to the appellant informing him that the investigating committee had received an allegation that his fitness to practise as a nurse was impaired and that pending a decision as to whether he had a case to answer an interim orders hearing would be held. The letter explained that the interim orders hearing could either impose conditions on the appellant's practice as a nurse or suspend his registration and that an interim order may be necessary because of "the nature of the allegations which related to an inappropriate and sexualised relationship with a client". It went on "if the alleged behaviour was to be repeated there would be a real risk of psychological harm to clients…an order may be necessary for the protection of the public and otherwise in the public interest to maintain the public's confidence in the profession".
3. The hearing took place on 29 th November 2011. Mr Perry has always accepted some of the allegations against him. He accepts that the panel could properly have imposed a conditions of practice order. Detailed conditions were proposed to the panel. …
…
24. Some of the allegations were not in dispute. The applicant accepted at the time of the disciplinary hearing before his employers, and thereafter, that he had overstepped professional boundaries. He made the same concession at the hearing. The applicant said that he had started out with good intentions, seeking to gain Mrs J's trust and to ensure that she engaged with him. He accepted sending texts in response to texts she had sent him. The applicant did not accept any sexual touching. The complainant had alleged that he had asked her for cuddles, kissed her on the forehead, asked her to talk about her sexual history in detail, asked her to dress up for him, sent sexually explicit texts which he had asked her to delete. It is the applicant's case that those allegations were fabricated, to punish him for seeking to distance himself from the complainant. Although the police were fleetingly involved it is not apparent that there was any allegation of criminal conduct. The police took no action. At the hearing before the panel the applicant recognised that his admitted conduct justified an interim order, as Mr Wise did before me. That was a realistic concession; whatever the circumstances in which the texts came to be sent, their sexual content and overtones were plainly completely unacceptable in the context of a professional relationship.
The judge described the hearing before the Investigating Committee as follows:
32. The applicant was represented by counsel, Mr Beeby. Mr Wise submits that Mr Beeby was prevented by the chairman from exploring the allegations in evidence with the applicant. I was directed to the following intervention "Background is helpful in order to help us with the assessment of risk. But we are not here to consider matters of fact and certainly not here to consider balancing evidence in one direction or the other. We take the allegations. We need to hear whatever is appropriate to be said to us in helping us to assess the level of risk going forward from here". However a little later he said this, "The guidance that the NMC gives is very clear. We are not required to weigh up evidence. All we have to be satisfied of is that, given the information in front of us, there is what is called a prima facie case requiring consideration of an interim order."
As appears from this summary, the appellant gave evidence. The Committee indicated that it would hear any evidence going to suggest that the allegations were clearly unfounded or malicious, and it received the appellant's evidence as to what he admitted and what he denied.
The statutory framework
Sections 60 and 62 of the Health Act 1999 authorise the making of Orders in Council to regulate health care and associated professions. The Nursing and Midwifery Order 2001 ("the Order") was made under the authority of those sections. Article 3(1) of the Order provides for the establishment of the Nursing and Midwifery Council. Its principal functions are "to establish standards of education, training, conduct and performance for nurses and midwives and ensure the maintenance of those standards". In accordance with Article 5 of the Order the NMC has established and maintains a register of qualified nurses and midwives. Paragraph (9) of Article 3 provides for the establishment of 4 committees of the Council, including the Investigating Committee and the Conduct and Competence Committee. I shall refer to the Investigating Committee as "the Committee".
Fitness to practise is the subject of Part 5 of the Order. Article 22 requires an allegation that fitness to practise is impaired by reason of misconduct or other specified matters to be referred, as soon as practicably possible, to the Investigating Committee. Article 26(1) requires the Investigating Committee to investigate any allegation which is referred to it in accordance with Article 22 or Article 24. Article 26(2)(i) requires the Committee "to consider in the light of the information it has been able to obtain and any representations or other observations made to it … whether in its opinion" in respect of an allegation that fitness to practise is impaired by reason of misconduct "there is a case to answer". The Committee must notify the person concerned and the person making the allegation of its decision, giving its reasons. If the Committee concludes that there is a case to answer it must refer the case to the Conduct and Competence Committee. That Committee conducts a hearing of the merits of the allegations and determines whether the allegation is well-founded and if so what is the appropriate order to be made, which may range from striking the person off the register to a caution: see Article 29.
Article 26(11) authorises the Investigating Committee to make an interim order in accordance with Article 31 at any time before referring a case to the Conduct and Competence Committee. Article 31 is headed "Interim Orders by a Practice Committee". … (The Practice Committees are the Investigating Committee, the Conduct and Competence Committee and the Health Committee: see Schedule 2 to the Order.) Article 31 provides, so far as relevant:
"(1) This Article applies where –
an allegation...
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