Clarke v United Kingdom Central Council for Nursing, Midwifery & Health Visiting
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE RICHARDS |
| Judgment Date | 27 May 2004 |
| Neutral Citation | [2004] EWHC 1350 (Admin) |
| Docket Number | CO/6592/2003 |
| Date | 27 May 2004 |
| Court | Queen's Bench Division (Administrative Court) |
[2004] EWHC 1350 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Richards
CO/6592/2003
MR EDMUND COFIE (instructed by AM Walters & Co) appeared on behalf of the CLAIMANT
MR ROBERT LAWSON (instructed by penningtons) appeared on behalf of the DEFENDANT
This is an appeal against a decision of the Professional Conduct Committee of the respondent, the Nursing and Midwifery Council ("NMC"), made on 21 August 2003 at the conclusion of a two-day disciplinary hearing. At the hearing the appellant faced seven charges of misconduct in respect of incidents alleged to have occurred while he was employed as a Registered Mental Nurse at Havelock Nursing Centre, South London.
The factual allegations in four of the charges were found proved, and in each case the Committee went on to make a finding of misconduct. The penalty was to remove the appellant's name from the register without specifying a period of time. By this appeal, the appellant challenges the findings of the Committee and the penalty imposed.
Legal framework
The NMC is governed by the Nursery and Midwifery Order 2002. On 1 April 2002 it took over from the United Kingdom Central Council for Nursing, Midwifery and Health Visiting ("the UKCC") as the regulatory body for the nursing and midwifery professions, and the maintainer of the registry of nurses. The UKCC was governed by the Nurses, Midwives and Health Visitors Act 1997. As part of its function it had to determine by rules the circumstances and means by which a practitioner should be removed or suspended from the register and by which they might be restored or have their suspension terminated: see section 10 of the 1997 Act.
The relevant rules were contained in the Nurses, Midwives and Health Visitors (Professional Conduct) Rules 1993 (as amended). They include a procedural framework for the hearing of charges of misconduct. Pursuant to transitional provisions contained in the 2002 Order, disciplinary hearings before the NMC are currently dealt with under the terms of the 1997 Act and the 1993 Rules.
Each of the charges in this case allege misconduct, defined by Rule 1(k) of the 1993 Rules as "conduct unworthy of a registered nurse, midwife or health visitor as the case may be". The decision in question was, as I have indicated, that of the Professional Conduct Committee of the NMC. There is a right of appeal against such a decision by virtue of section 12 of the 1997 Act. The appeal is governed by CPR Part 52 and by Rule 52.11(3). An appeal can be allowed only if the Committee's decision was (a) wrong, or (b) unjust because of a serious procedural or other irregularity in the proceedings.
In broad terms, the approach of the court on an appeal is as follows. Although its function in respect of a statutory appeal is to conduct a re-hearing, it is one usually conducted, and conducted in this case, on the basis of a transcript of the hearing below. The appellate court must bear in mind that the decision-making Committee had the advantage of seeing and hearing the oral evidence given, and it must accord an appropriate measure of respect and weight to the judgment of the Committee on measures necessary to maintain professional standards and provide adequate protection to the public: see generally Ghosh v General Medical Council [2001] 1 WLR 1915, and Gupta v General Medical Council [2002] 1 WLR 1691, to both of which I will refer further in due course.
The facts
The charges against the appellant were as follows:
"That you, whilst employed as an RMN at Havelock Court Nursing Centre:
1a on an unknown date between 1 April 2001 and 1 August 2001, failed to safeguard and promote the interest and well-being of patient A, in that you:
(i) said words to the effect of, 'Go back to your fucking room, we don't have time to give you tea and a fag now', after 'A' had asked for an early morning cigarette and a cup of tea;
(ii) pushed 'A' towards his bedroom; and
b that having so failed to safeguard and promote the interests and well-being of a patient, you are guilty of misconduct.
2a on an unknown date between 1 April 2001 and 1 August 2001, pushed Patient B after he refused to leave his wife's bedroom; and
b that having so pushed a patient, you are guilty of misconduct.
3a on an unknown date between 1 April 2001 and 1 August 2001, failed to safeguard and promote the interests and well-being of Patient C after he had urinated on the dining room floor, in that you:
(i) slapped Patient C on the back;
(ii) said words to the effect of, 'What the fuck are you doing?', to 'C';
(iii) Pushed patient C towards his bedroom; and
b that having so failed to safeguard and promote the interests and well-being of a patient, you are guilty of misconduct.
4a on an unknown date between 1 April 2001 and 1 August 2001 failed to safeguard and promote the interests and well-being of Patient C after he had urinated on his bedroom floor, in that you:
(i) said words to the effect of, 'What the fuck are you doing?' to 'C';
(ii) slapped patient C on his back;
(iii) said words to the effect of, 'Go to your fucking bed', to 'C'; and
b that having so failed to safeguard and promote the interests and well-being of a patient, you are guilty of misconduct.
5a on an unknown date between 1 April 2001 and 1 August 2001, were verbally abusive to Patient D, more particularly you said words to the effect of, 'If you speak to me like that I will break your hands'; and
b that having so verbally abused a patient you are guilty of misconduct.
6a on an unknown date between 1 April 2001 and 1 August 2001 slapped Patient E after he had urinated in the bathroom sink; and
b that having so slapped a patient you are guilty of misconduct.
7a on an unknown date between 1 April 2001 and 1 August 2001 pulled Patient E along the floor from the dining room to his bedroom; and
b that having so pulled a patient along the floor you are guilty of misconduct."
The hearing before the Committee commenced with the reading out of those charges. The appellant was represented throughout the hearing by a Mr Caderdina of the Transport and General Workers' Union. Let me say at once that I had some initial concerns on reading the transcript of the hearing as to whether the appellant's case was presented as well as it might have been. The appeal is not however based on any alleged incompetence on the part of his representative, and I am satisfied on consideration of the case as a whole that, despite my concerns, an appeal could not have been advanced successfully on such a ground.
The hearing proceeded as follows. First, the nature of the case against the appellant was explained by the NMC's solicitor, Mr Girling, in opening. It was explained that the factual elements of charges 1, 2, 3 and 7 were witnessed by two care assistants, Mrs Hall and Mrs Haynes, whilst the factual elements of charges 4, 5 and 6 were witnessed only by Mrs Haynes. After the opening, evidence was called: first, in the form of evidence from the manager of the Centre, Mr Cunningham, who gave background information and explained when he had received, and how he had dealt with, the complaints against the appellant that formed the basis of the charges. This was followed by evidence from Mrs Hall. Following her evidence, there was a short adjournment while the NMC solicitor took instructions. Upon the resumption of the hearing he announced that it had been his intention to call Mrs Haynes, but that she was not present and that efforts to make contact with her had been unsuccessful. He went on, addressing the Chairman:
"Madam, for reasons which it would be prejudicial for me to go into, it is unlikely that Mrs Haynes is going to be attending here today. For that reason, madam, the position of the Council in relation to three of the charges which were previously denied by Mr Clarke is that the Council would offer no evidence in relation to those …"
Accordingly, no evidence was offered in respect of charges 4, 5 and 6. Those were the charges the factual elements of which had been witnessed only by Mrs Haynes.
The case against the appellant concluded. The appellant's representative made a submission of no case to answer in respect of paragraph (iii) of charge 3a, a submission which was accepted by the Committee. In relation to the balance of the charges, the hearing then proceeded. The appellant gave evidence which took up the remainder of the first day.
The second day began with the recalling of Mr Cunningham and then the appellant. Thereafter, the appellant's representative summed up on the factual elements of the outstanding charges, and the Committee retired to consider its decision on the facts. It returned after one and a half hours and announced that the outstanding charges were proved, and gave its reasons as follows:
"… the Professional Conduct Committee find that the facts alleged in charge 1a(i) are proved, in 1a(ii) are proved, in 2a are proved, in 3a(i) are proved, in 3a(ii) are proved, and in 7a are proved.
The reasons for this are: the Professional Conduct Committee have considered the evidence very carefully and are satisfied that the facts alleged in the charges are proved. The reasons are that the Committee have found Mrs Hall to be a credible and reliable witness. They are sure beyond reasonable doubt that she is telling the truth."
The Committee went on to consider the question of misconduct in respect of the facts that...
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