Holder v Nursing and Midwifery Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 15 June 2017 |
| Neutral Citation | [2017] EWHC 1565 (Admin) |
| Date | 15 June 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4153/2015 & CO/4411/2015 |
[2017] EWHC 1565 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Green
Case No: CO/4153/2015 & CO/4411/2015
The Appellant appeared in person
Miss L Hartley (instructed by NMC) for the Respondent
Hearing dates: 15th June 2017
Approved Judgment
A. Introduction
There is before the court an appeal against the decision of the Defendant, the Nursing and Midwifery Council ("NMC"). By decision of 3 August 2015, the Appellant was notified that she was to be struck off the register of nurses for misconduct. She now appeals against that decision.
B. Representation
Before addressing the substantive issues arising, I consider it right to record my commendation to the Pro Bono Unit and to counsel who have acted on the Appellant's behalf. In particular, Mr Christopher Stone appeared pro bono during earlier oral stages of the proceedings. Dr Mirza Ahmed from St Philips and Miss Martina Murphy from Tanfield Chambers have provided detailed written grounds and submissions on the Appellant's behalf.
It is an unfortunate feature of these sorts of regulatory proceedings that whilst the Respondent authority is represented, the appellants, who do not qualify for legal aid, frequently are not. Cases such as this raise issues of conflicting public interest. The regulators represent the interests of the public and have the duty to maintain the confidence of the public in the public health system. On the other hand, the appellants are individuals whose livelihoods have often been taken away from them or at least significantly curtailed by a regulatory decision. Indeed, the sanctions that may be imposed upon a professional, such as striking off, are more severe than many sanctions imposed in the criminal courts where legal aid is available.
Judges hearing these cases where litigants in person are present and present their own appeals are often left uneasy that the best points have not been advanced on the part of the appellant. These cases are frequently complex. Without legal assistance, litigants in person understandably feel themselves at a major disadvantage. As it appears to many judges, there is a consequential risk of them being denied justice.
Accordingly, the courts are immensely grateful when counsel acting pro bono, often through the Pro Bono Unit, assist and bring some degree of order to the case and help the Appellant and the court in identifying the issues in the case and articulating them. In the present case, the submissions of Dr Ahmed and Miss Murphy have been of immense help in identifying the issues and turning them into proper grounds of appeal.
During the appeal today, the Appellant has not been represented by counsel, but she has been supported by members of the PSU, to whom I am also grateful.
Miss Holder has today orally identified a significant number of challenges to the decision. I have carefully noted these and I have taken them into account over and above the arguments advanced by counsel in written submissions on the Appellant's behalf. I am confident that overall I have been able to determine this appeal fairly as between the parties.
C. The Facts
(i) The events leading up to the decision
I turn now to the facts of the case. The Appellant was employed by Central Manchester University Hospital Trust ("the Trust") from 24 November 2008. She was deployed at the Cataract Centre at Withington Community Hospital.
In June 2010 the Appellant went on sick leave, not returning until about 30 April 2011. During that period of sick leave, she made formal allegations of racial discrimination and sexual harassment against four senior female members of staff. She pursued the claim through an Employment Tribunal, advancing 20 grounds. In June 2012 the allegations were dismissed by the Tribunal. On her return from sick leave, she was transferred to the Macular Treatment Centre.
The proceedings against the Appellant concern misconduct occurring between November 2009 and February 2012 during those periods when the Appellant was in work. During this period, the Appellant is said, in a wide variety of different ways, to have acted in an unprofessional manner towards colleagues and patients.
In particular, the charges determined by the Conduct and Competence Committee of the Respondent ("the CCC") include eight allegations of improper conduct encompassing 21 particularised incidents. The CCC categorised these as " inappropriate touching of colleagues and other inappropriate and unprofessional behaviour in a workplace setting".
The particularised complaints concerned such matters as: speaking inappropriately to colleagues in earshot of patients; shouting at office staff; confronting a doctor in the presence of a patient; putting the Appellant's hands around a colleague's neck in a choking manner; tickling and stroking and touching of colleagues inappropriately; and, threatening colleagues. On one particular occasion, highlighted by Miss Hartley appearing for the Respondent, the conduct of the Appellant is said to have caused significant delay in a patient receiving treatment. The patient was informed by the Appellant that she might die if she had the treatment in question. The patient thereafter declined to have the treatment and it was only having consulted her GP that she then returned for the treatment some weeks later. It is said that the delay in treatment could have risked serious harm to the patient.
The Appellant was suspended in February 2012. In September 2012 the Appellant resigned from the Trust.
(ii) The CCC proceedings
On 21 November 2012 the Trust made a referral to the Nursing and Midwifery Council, the Respondent in the present proceedings, who referred the matter to the CCC.
The CCC heard the charges against the Appellant over the course of 11 days in February, March and July 2015. The Appellant was represented by counsel. The NMC called nine witnesses to establish the charges against the Appellant. The witnesses were cross-examined on behalf of the Appellant. The CCC addressed itself expressly to the fact that the burden of proof lay with the NMC, with the standard being the civil balance of probabilities.
On pages 6 and 7 of the decision, the CCC stated the following about the quality of the evidence that they had heard:
"The charges in your case all relate to alleged inappropriate touching of colleagues and other inappropriate and unprofessional behaviour in a workplace setting. The panel also took into account the wide range of seniority of the NMC witnesses from a healthcare assistant and a student nurse to a Lead Nurse; the fact that several of them had had little or no previous contact with you prior to the incident complained of; and that the charges relate to incidents occurring over a considerable period of time in three separate locations. The panel considered that this combination of factors lends weight to the NMC's case.
Ms Campbell-Clause on your behalf commented on the absence of various potential witnesses referred to in these charges and suggested the lack of their evidence was strange. However, the panel has heard live evidence from at least one witness directly involved in each alleged incident.
The panel also heard evidence from you under oath. The panel found many of your answers to questions to be evasive. Throughout you appeared to have difficulty answering some of the questions you were asked: your responses were frequently lengthy and repetitious and they were not always focussed on answering the questions. This was despite you being prompted, at regular intervals, to listen to the question being put and answer it. The panel found your descriptions of some of the events to be inconsistent and lacking detail. The panel found your evidence generally lacked credibility and was not reliable.
Broadly speaking your case was that these events did not happen at all or as described and that the evidence against you was fabricated. Throughout the hearing, you remained focussed upon your earlier complaints of bullying, discrimination and harassment which had already been considered and dismissed by both the Trust and the Employment Tribunal. You repeatedly stated that people were speaking out against you because of your complaints about them, even though at least two of the witnesses had only known you for very short periods of time. You were concerned that none of the witnesses liked you and that their dislike provided motivation for the allegations made.
You said that these were reasons why they were making allegations about you.
Taking all of the above into account, in considering the facts of each individual charge, the panel determined that where there was a direct conflict between evidence given by the NMC witnesses and evidence given by you, it preferred the evidence of the NMC witnesses."
(iii) The decision of the CCC
The CCC then set out its findings in relation to each charge, concluding in respect of each that the NMC had made out its case to the requisite standard. On page 29 of the decision, the CCC concluded as follows in relation to the conduct as a whole:
"The panel concluded that your actions would be regarded as deplorable by fellow practitioners. It found that your actions, both individually and collectively, fell seriously below the standard expected of a registered nurse and amounted to misconduct."
Having made findings adverse to the Appellant, the CCC turned to consider fitness to practise and whether the Appellant's fitness was impaired. The CCC found that there was impairment, applying the test laid down by Cox J in CHRE v NMC & Grant [2011] EWHC 927 (Admin) at paragraph [74]. It is not...
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