James Kearsey v Nursing and Midwifery Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 01 July 2016 |
| Neutral Citation | [2016] EWHC 1603 (Admin) |
| Docket Number | Case No: CO/6676/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 July 2016 |
[2016] EWHC 1603 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/6676/2015
Ms Gemma Hobcraft (instructed by Hill Dickinson LLP) for the Appellant
Mr Matthew Cassells (instructed by Nursing and Midwifery Council) for the Respondent
Hearing dates: 7th June 2016
Approved Judgment
The Appellant is a registered nurse whose name was removed from the Register of nurses by a decision of the Nursing and Midwifery Council's, NMC's, Conduct and Competence Committee or Panel on 27 November 2015. It found him guilty of misconduct, that his fitness to practise was impaired and it decided that the sanction had to be the removal of his name from the Register. The charges proven against him were: (1) that he had been convicted of assault by beating his then partner, (2) he had failed to report his conviction to his employer, or (3) to notify the NMC; (4) he did not disclose it to his employer when discussing his fitness to practise, and (5) on 5 September 2014 he provided an inaccurate account of the facts behind the conviction to his employer, knowing that it was inaccurate. In the latter respect only (6) he was found to have acted dishonestly. He did not attend the 3-day hearing before the Panel, nor was he represented. He appeals pursuant to Article 38 of the Nursing and Midwifery Order 2001 (2002 SI No.253), the Order, which governs the conduct and functions of the NMC. The Panel decision, he contends, was wrong or unjust.
Ms Hobcraft for the Appellant raises five grounds of appeal: (1) no valid notice of the hearing was served since the NMC later sought to rely on material which was not served with it as it should have been; (2) the Panel wrongly concluded that he was absent voluntarily from the hearing; (3) the investigatory interview should not have been relied on to any significant extent in view of the evidence about his mental state at the time of interview, and this fact was ignored by the Panel; (4) the evidence before the Panel included statements by the victim about the Appellant's violent and abusive behaviour towards her which went beyond that charged, and which should have been separately charged if relied upon; (5) the decision on sanction was inadequately reasoned.
There is no need to rehearse the well-known principles which govern this appeal.
Ground 1: Notice of hearing
The Nursing and Midwifery (Fitness to Practise) Rules, Order in Council 2004 No 2761, the Rules, provide in R11(1) that a notice of hearing must be sent to the registrant. By R11(3), this notice "shall…(b) contain a charge particularising the allegation, which shall set out any alleged facts on which it is based, and be accompanied by copies of any documents in support that have not previously been disclosed to the registrant by the Council or a Practice Committee." It must also inform the registrant of his right to attend and call evidence or to cross-examine witnesses, and that the Committee has power to proceed in his absence.
The notice of hearing was accompanied by some documents but not by all of those which the NMC later sought to rely on before the Panel. The Panel was not aware of this when it reached its decision that, because he had been properly served, it would proceed in the Appellant's absence. The hearing had been underway for just over half an hour when the Legal Assessor raised the point that the Appellant had not been sent certain documents. An explanation for this was provided; it related to when the documents came into existence and their sensitive nature, but whatever it made of the explanation, the Panel decided that it would not be fair to consider those documents, and did not do so. No complaint is made of that decision. It was not suggested that their exclusion deprived the Appellant of material which could have assisted his case. Nor is it suggested that they played some later part in the decisions.
Ms Hobcraft submits that the decision that the notice of hearing had been properly served, that the mandatory requirements of R11 had been met, and that it was therefore a "valid" notice of hearing, had been reached in ignorance of the correct factual position in relation to the documents which should have been served with it. Accordingly, it reached a decision that a valid notice of hearing had been served when it had not been. The Panel should have adjourned for a further notice of hearing to be served, and should have done so even though the Panel had decided that it would not admit those documents into evidence. The die was cast for the validity of the notice of hearing by the NMC's intended reliance on the missing documents at the hearing.
This is a procedural point of some technicality, and not a sound one either. Principles of public law have not required, for some time, the division of statutory obligations into mandatory and directory requirements, such that any failing in "mandatory" procedural requirements necessarily invalidates all subsequent steps or causes a tribunal to lose jurisdiction. But even on the most technical level, the notice served by the NMC did contain all the material actually relied on, save for a brief period, about which no argument on prejudice arises. The notice of hearing may have had a defect in that it was not accompanied by all the material on which the NMC intended to rely, but the purpose of the notice of hearing, to send to the registrant the material on which the NMC was actually to rely, was achieved. There was no unfairness either. The position achieved was exactly the same as if a further identical notice of hearing had been served for a further date ahead, save that a wholly pointless adjournment was avoided. There is nothing in this point.
Ground 2: The decision to proceed in the Appellant's absence
R21 of the Rules provides that where the registrant is not present and is not represented at hearing, the Committee shall require the NMC case presenter to adduce evidence that all reasonable efforts have been made in accordance with the Rules to serve the notice of hearing on the registrant; if so satisfied, the Committee may direct that the allegations be dealt with in his absence.
The Appellant had an address on the Register. That is the same address as he gave on his Notice of Appeal for this appeal. No change of registered address had been notified, formally or informally, to the NMC. Registrants are required to notify changes of address. But as the Panel found, he had not engaged with the investigatory or disciplinary process for a long time, failing to respond to correspondence. As required by R34, the notice of hearing was sent to his registered address by recorded delivery and first class post. However, because of his longstanding failure to engage, the NMC had gone to the expense of hiring a tracing agent to find out whether there was another address at which he could be contacted. Two other addresses had emerged; one was his parents' address. Two further notices of hearing with the same documents attached were sent to those addresses. There had been no request for an adjournment. The NMC had a witness, a Matron, waiting to give evidence. The Panel concluded that the Appellant had voluntarily absented himself from the hearing and decided to proceed in his absence.
Ms Hobcraft submitted that there was no positive evidence to that effect. In my judgment, there was ample material from which the Panel's conclusion could be drawn. Indeed, the Panel came to the only rational decision to which it could have come. The Appellant was refusing to participate or even to engage in any way with the processes of investigation and discipline. An adjournment would have served no purpose.
Ms Hobcraft submitted that since one of the reasons why not all the documents had been sent with the notice of hearing was that some were confidential and subject to data protection requirements, and the NMC was not sure that they would arrive at a secure address, the NMC and the Panel could not be sure that the registrant had received the notice of hearing at all. This was not an issue addressed directly by Panel since the question of the un-served documents arose after its decision to proceed in the registrant's absence. But there is nothing in this point either: the concern about confidentiality arose because documents were being sent to three addresses, with the risk that at one or two the recipient might be someone who should not receive that material. It was the addresses which were not secure; the document delivery was not in doubt. I note that it has never been suggested by any evidence from the registrant that he did not receive the notice of hearing, nor has he said at which addresses or addresses he received it. I see nothing to cause doubt about the correctness of the decision to proceed in the registrant's absence.
The evidence of the investigatory meeting
The sole witness, referred to as Ms 1, on behalf of their employer, the Dudley Group NHS Foundation Trust, had conducted an interview with the registrant on 5 September 2014. Ms 1 made a record of that interview, called the Investigatory Interview Record. It is not a verbatim record, but is more of a summary of a long interview in the form of questions and answers. It states that notes will be sent to the interviewee for confirmation of accuracy and there is a line for the interviewee to sign his confirmation. The copy before the Panel is not signed. There was no direct evidence that it had been sent for signature. However, Ms 1 gave evidence about it which necessarily involved her saying that it was an accurate record; her evidence was accepted. Nor has the registrant suggested...
To continue reading
Request your trial
-
R Evgeniy Igorovich Kuzmin v General Medical Council
...common law rule, is also reflected in the language used in the authorities. I have already referred to the case of Iqbal. In Kearsey v Nursing and Midwifery Council [2016] EWHC 1603 (Admin) at [20], Ouseley J noted that the panel had decided not to draw adverse inferences from non-attendan......