Harrold v Nursing and Midwifery Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE JAY,Mr Justice Jay |
| Judgment Date | 16 November 2016 |
| Neutral Citation | [2016] EWHC 3027 (Admin) |
| Date | 16 November 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/13945/2009 |
[2016] EWHC 3027 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Jay
CO/13945/2009
Mr Marc Beaumont (instructed by Direct Access) appeared on behalf of the Appellant
Mr Adam Solomon (instructed by the Nursing and Midwifery Council) appeared on behalf of the Respondent
: This is an appeal under article 38(1)(a) of the Nursing and Midwifery Order 2001 SI 2002/253 against a decision of the respondent's Conduct and Competence Committee ("CCC") striking off the appellant Mrs Alvida Harrold on 21 October 2009.
It is immediately apparent that this is an extremely stale case. I have set out the background salient to the appeal itself in my judgment in R (On the application of Harrold) v Nursing and Midwifery Council [2016] EWHC 255 (Admin) where I held that, notwithstanding the delay, the appellant cannot be deemed to have abandoned her appeal. Over the years, there has been a plethora of litigation brought by the appellant against the NMC, her former employer, and others. This culminated in the decision of Elizabeth Laing J given on 9 May 2016 in Nursing and Midwifery Council v Harrold [2016] EWHC 1078 (QB). There Elizabeth Laing J made a general civil restraint order against the appellant, but exempted this appeal from its scope.
The parties are agreed that this appeal proceeds by way of rehearing upon an examination of the transcripts. This is not, as it happens, a case which turns on an assessment of the credibility or reliability of witnesses. I am content to adopt the approach indicated by Richards J, as he then was, in R (on the application of Clarke) v NMC [2004] EWHC 1350 (Admin), at paragraph 6:
"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 rehearing, it is one usually conducted and conducted in this case on the basis of a transcript of the hearing below. The appellant 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 GMC [2001] 1 WLR 195 and Gupta v GMC [2002] 1 WLR 1691 to both of which I will refer further in due course."
There is an issue between the parties as to the quantum of respect which ought to be shown by this court. I will address that when I come to what I consider to be the main point of this appeal; namely, that of sanction.
The appellant was employed by the North Bristol NHS Trust, ("the Trust") until her dismissal in December 2005. She had been signed off sick since June 2004. On 17 November 2006, the Trust, somewhat belatedly, referred the appellant to the NMC, because she had written an open letter dated 31 August 2004 to "all the patients on the dialysis unit."
The letter complained of the conduct of the appellant's unit manager who had made her life intolerably difficult and stressful. It asserted that her unit manager, if not management in general, had subjected her to "harassment and victimisation" and that in truth there were no problems with the nursing care she had provided. The letter also stated that she had raised a formal complaint about the manager's outrageous behaviour and was expecting a favourable outcome. At the end of the letter, which although written in manuscript is not difficult to read, the appellant stated "please ensure that everyone see [sic] this letter."
It took far too long for this complaint to be investigated by the NMC. No convincing explanation for the delay has been given. A hearing before the CCC was set down for 4 June 2009, but was adjourned on the appellant's application. According to the respondent's decision letter dated 2 July 2009, the application for an adjournment was made on four grounds, including the appellant's wish to have legal representation. It was refused on three grounds, but "with considerable regret" allowed on the fourth; namely, that the appellant was apparently in ill health. The decision letter referred to "the very brief medical report received from her GP by fax this afternoon."
It is clear from subsequent correspondence between the appellant and the respondent that, (1) the former was well aware of the adjourned hearing dates, 20 and 21 October 2009; (2) her union had refused to provide legal representation (she accused UNISON of colluding with the Trust) and, (3) that unless the union changed its mind, she would be unable to attend.
The charges against the appellant read as follows:
"That you, while employed as a Staff Nurse at the Trust:
1. On or between 1 August 2004 and 30 September 2004 forwarded an open letter to 'all the patients' on the dialysis unit at the Trust alleging misconduct by the Trust or one of its employees, more particularly you stated;
A. Cathryn Greaves had been making life at work difficult for you;
B. You had suffered harassment and victimisation on the unit;
C. You had made a formal complaint about Cathryn Greaves' behaviour towards you;
2. In relation to (1) above you requested that the letter be seen by 'everyone';
And in the light of the above your fitness to practise is impaired by reason of your misconduct."
At the commencement of the proceedings on 19 October 2009, the CCC satisfied itself that the appellant had been properly served with notice of the hearing and then received advice from its legal assessor as to how it should proceed. The legal assessor advised the CCC that it should interpret the appellant's correspondence as containing a request for an adjournment of the proceedings simply on the basis that she wished to obtain legal representation. Further advice was given (see the transcript of day one page 6 E to F). The CCC then ruled as follows:
"The issue before the panel is whether it should acceded to the Registrant's application for an adjournment or it should proceed in her absence. The panel has considered carefully the material which has been placed before it in relation to the proof of posting which includes the correspondence from the Registrant since the last hearing. It is clear that the Registrant will not be able to obtain legal representation if there is an adjournment. Unison, her union, is not prepared to represent her. She is unable to afford independent legal representation and, as she is a member of a trade union, she is not entitled to free representation. In the circumstances there is no purpose in adjourning on the grounds that she advances. It is moreover the case that the fitness to practise proceedings do not rely on the Registrant being represented. It is right to observe that the NMC will be represented, but in the absence of any representation for the Registrant the Legal Assessor has a role to protect the Registrant's interests and make sure that her case is before the panel.
This is a relatively old case. The initial complaint was made in June 2007. It relates to matters which took place in the late summer of 2004. The Registrant received her notice of referral to the Conduct and Competence Committee in October 2008. She has had sufficient time to explore all the avenues available to her to obtain representation. Moreover, she has had a specific opportunity to obtain representation since the hearing was adjourned in early June, if that was possible. On that occasion the three witnesses who attend today were in attendance. In the view of the panel it is not in the public interest to delay the hearing of this case any further and, indeed, it would not be fair to the witnesses who have attended again today. The Registrant has stated that she does not intend to be present without representation. In the light of the foregoing the panel refuses the application to adjourn and finds it is appropriate to proceed with the hearing in the Registrant's absence."
The CCC then heard evidence from a number of witnesses relating to 31 August 2004 letter. The bundle contains correspondence both previous and subsequent to the letter which indicates that the appellant was lining up and then pursuing discrimination proceedings against the Trust. On 9 August 2004, the appellant wrote to the Trust warning them that a letter would be sent to the patients on the dialysis unit. On 20 September 2004, in a letter to which the CCC was not referred, in my view wrongly, the appellant wrote again to the Trust explaining her position as regards some of the earlier correspondence. The letter further stated:
"… all the patients in the unit were aware of the problems in the unit. It was an open secret that things were not well between Cathryn Greaves and myself. I was often asked by patients why I looked so unhappy on the unit. They were aware that I had left the unit because of the problems. I am also aware the patients have been overhearing discussions taking place about me on the unit. Again, to prevent any misconception, I felt the patients should be told why I had to leave the unit the way that I did. I believe that the whole world should know and will know the terrible problems and injustice that I have suffered …"
At the end of the first day of the hearing, the CCC found the charges proved. Given that the appellant was the author of the 31 August 2004 letter, there could be no dispute about the bare facts. At the start of day two, the CCC heard further...
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Nursing & Midwifery Council v Alvida Harrold
...9 Meanwhile, Mrs Harrold's appeal against her striking off by the NMC had been heard by Jay J after a very long delay. It was dismissed: [2016] EWHC 3027. An application for permission to appeal against that judgment was refused, also by Sales LJ. 10 An account of what has happened since Wa......
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Nursing and Midwifery Council v Alvida Harrold
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