Katharine Ann Gray Against A Decision Of The Professional Conduct Committee Of The Nursing And Midwifery Council Dated 19th November 2007
| Jurisdiction | Scotland |
| Judge | Lord Nimmo Smith,Sir David Edward,Lord Hardie |
| Judgment Date | 23 July 2009 |
| Neutral Citation | [2009] CSIH 68 |
| Court | Court of Session |
| Date | 23 July 2009 |
| Docket Number | XA177/07 |
| Published date | 23 July 2009 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Nimmo Smith Lord Hardie Sir David Edward Q.C. XA177/07 | [2009] CSIH 68 OPINION OF THE COURT delivered by LORD NIMMO SMITH in Appeal under section 12 of the Nurses, Midwives and Health Visitors Act 1997 by KATHARINE ANN GRAY GRAY Appellant; against a decision of the Professional Conduct Committee of the Nursing and Midwifery Council dated 19 November 2007 _______ |
Alt: Webster; Balfour + Manson LLP
23 July 2009
Introduction
[1] Prior to the decision which is the subject of this appeal, the appellant was a Registered Nurse (Adult). Between July 2002 and June 2003 she was employed as a deputy manager at Forebank Care Home in Dundee. On about 2 October 2003 the Nursing and Midwifery Council ("the Council") received a complaint from a former colleague of the appellant at Forebank Care Home, Heather Alison, making various allegations of misconduct on the part of the appellant in the course of her employment there. In due course an inquiry took place before the Professional Conduct Committee ("the Conduct Committee") of the Council on various dates between June and November 2007. On 9 November 2007 the Conduct Committee found the appellant guilty of misconduct in certain respects and instructed the Registrar to remove her name from the register. The Conduct Committee's decision was set out in a letter to the appellant dated 19 November 2007 (see paragraph [29] below). The appellant now appeals to this court against certain aspects of the decision. The appeal is opposed by the Council.
[2] Each member of the court has contributed substantially to this opinion.
The legal framework
[3] It is convenient at the outset to set out the legal framework governing the proceedings before the Committee and the appeal to this court.
[4] The primary legislation is contained in the Nurses, Midwives and Health Visitors Act 1997 ("the 1997 Act"). Despite repeals made by the Health Act 1999 and various Commencement Orders made thereunder, by the Nursing and Midwifery Order 2001 (Transitional Provisions) Order of Council 2004 (SI 2004 No. 1762) the relevant provisions of the 1997 Act and the Conduct Rules referred to below are kept in force where an allegation of misconduct has been received by the Council before 1 August 2004, as was the case here. What we are concerned with therefore are the relevant provisions of the 1997 Act and of the Nurses, Midwives and Health Visitors (Professional Conduct) Rules 1993 Approval Order 1993 (SI 1993 No. 893) ("the Conduct Rules"). Section 10 of the 1997 Act and the Conduct Rules are kept in force by Article 2 of the 2004 Order, and section 12 of the Act by Article 5 of the Order.
[5] Section 7 of the 1997 Act contains provisions relating to the maintenance of a register of qualified nurses, midwives and health visitors. Section 10 provides for the making of rules relating to the removal of a person from the register, whether or not for a specified period, and the subsequent restoration of that person to it. More detailed provision thereanent is made in the Conduct Rules.
[6] In Part I of the Conduct Rules, by rule 1 (2)(k) "misconduct" is defined as meaning conduct unworthy of a registered nurse, midwife or health visitor, as the case may be, and includes obtaining registration by fraud. By rule 2 (1) the circumstances in which a practitioner may be removed from the register are inter alia that she has been guilty of misconduct. By rule 2 (2) the means by which a practitioner may be removed from the register in such circumstances are that, in accordance with Parts I and II, the question of misconduct has been investigated and referred to the Conduct Committee and, in accordance with Part II, misconduct has been proved to the Conduct Committee's satisfaction and the Conduct Committee has directed the removal. Rules 2 and 4 relate respectively to the sanctions, in a case of misconduct, of removal from the register and caution as to future conduct. (It may be noted in passing that this range of disposals is more restricted than that now available under rule 29 of the Nursing and Midwifery Order 2001 (SI 2002 No. 253).)
[7] The Conduct Rules make detailed procedural provisions, an outline of which, so far as relevant for present purposes, is as follows. In Part I, by rule 6 the Council is to consider allegations of misconduct by practitioners referred to it with a view to proceedings for such practitioners to be removed from the register. By rule 7 a Preliminary Proceedings Committee is to be constituted in order inter alia to carry out investigation of cases of alleged misconduct and to determine whether or not to refer a case of alleged misconduct to the Conduct Committee with a view to removal of a practitioner from the register. By rule 8, "Initial consideration of allegations of misconduct", after an allegation of misconduct which the Council's officer considers may lead to removal from the register is received by the Council, the Registrar is to send, in writing, to the practitioner concerned inter alia a summary of the allegations and notice that the Preliminary Proceedings Committee will in due course consider the matter. The Council, if it considers it appropriate, is to conduct an investigation before the matter is first considered by the Preliminary Proceedings Committee and, if such an investigation indicates that the practitioner may be removed from the register, the Registrar is to send to her copies of statements obtained during the investigation, together with any other documents considered appropriate which are in the Council's possession. At each stage the practitioner is to be notified that she is entitled to submit a preliminary response for consideration by the Preliminary Proceedings Committee at its meeting. By rule 9, "Commencement of proceedings", the Preliminary Proceedings Committee is to consider allegations of misconduct and, where it considers that the allegations may lead to removal from the register, it is to direct the Registrar to send to the practitioner a notice of proceedings, copies of statements obtained by the Council during investigation of the allegations and any other documents the Preliminary Proceedings Committee considers appropriate which are in the Council's possession (unless such documents have already been sent to the practitioner), and a request that the practitioner respond, in writing, to the notice of proceedings. Where a notice of proceedings has been sent to the practitioner the Preliminary Proceedings Committee is to consider any written response by her and is inter alia to refer to the Conduct Committee a case which it considers justifies a hearing before the Conduct Committee with a view to removal from the register.
[8] Part II of the Conduct Rules contains provisions relating to the constitution of and procedure before the Conduct Committee. By rule 13 (6) the Council is to prosecute proceedings which have been referred to the Conduct Committee. By rules 12 (1) and 18 (6), the Conduct Committee is to determine whether by reason of the misconduct of the practitioner respondent the Registrar is to be directed to remove the respondent from the register (whether or not for a specified period) or whether it is appropriate to issue a caution as to the respondent's future conduct. By rule 25 (1):
"The Conduct Committee may receive oral, documentary or other evidence of any fact which appears to it relevant to the inquiry into the case before it; provided that, where a fact which it is sought to prove or the form in which any evidence is tendered is such that it would not be admissible in criminal proceedings in any ... Scottish Court where the proceedings are in Scotland ... the Conduct Committee shall not receive evidence of that fact or in that form, unless after consultation with the legal assessor it is satisfied that it is desirable in the interests of justice to receive it having regard to the difficulty or expense of obtaining evidence which would be so admissible."
By rule 13 (1), where a case has been referred to the Conduct Committee, the Registrar is to send to the respondent a notice of inquiry in writing in a specified form, specifying the nature and particulars of the charge against her and containing certain other information.
[9] It is convenient at this stage to note that before the Conduct Committee, and again before us, it was common ground that the burden of proof of the charges against the appellant (as she now is) lay on the Council as prosecutor, and that the standard of proof was the criminal standard of proof beyond reasonable doubt. It was also common ground, under reference to sections 1 (1) and 9 (1) (c) of the Civil Evidence (Scotland) Act 1988 and Peace v General Teaching Council for Scotland 2003 SC 299, that corroboration was not required. (The previous practice of the Conduct Committee had been to require corroboration.)
[10] The possibility of proof beyond reasonable doubt on the basis of uncorroborated evidence gives rise to a number of considerations, on which we think it appropriate to comment at this stage. Subject to the provisions of rule 25 (1) of the Conduct Rules it is clearly desirable that contemporaneous documentary material relevant to the charge should be before the Conduct Committee. Where, as here, the charges relate to the practitioner's treatment of patients, contemporaneous records will presumably have been made by the appropriate persons concerned with the patient's care; that is to say, there will be a file, contributed to by a number of authors, maintained in respect of each patient. We would expect that such a file should, in the ordinary course, be before the Conduct Committee. This becomes all the more desirable where, with the passage of time, memories may have dimmed or recollections may have been affected by other considerations. Equally, if more than one person...
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