John Warren v The Nursing and Midwifery Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Yip |
| Judgment Date | 15 March 2018 |
| Neutral Citation | [2018] EWHC 679 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 March 2018 |
| Docket Number | CO/5191/2017 |
[2018] EWHC 679 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Mrs Justice Yip
CO/5191/2017
THE CLAIMANT appeared in Person.
Ms S Brownlee (instructed by the Nursing and Midwifery Council) appeared on behalf of the Respondent.
This is an appeal under Art.38(1) of the Nursing and Midwifery Order 2001, brought by John Warren against a decision of the Nursing and Midwifery Council's Fitness to Practise Committee, which I shall refer to as “the Panel” dated 18 th October 2017, in which they determined that his fitness to practise as a nurse was impaired by reason of misconduct and that his registration should be suspended for 12 months with a review before the expiry of the order.
This is a very sad case in many respects. There is no evidence to suggest anything other than that Mr Warren was a good and committed nurse up until the events in question. Unfortunately, in late 2013, he engaged in a relationship with a former patient and on one occasion had consensual sexual intercourse with her.
Mr Warren accepts that it was inappropriate for him to do so. It seems to me that he regrets what happened. The consequences for him have been severe, not least because the matter has been reported in a national newspaper in a way that does not reflect the findings of the Panel.
The disciplinary proceedings have been protracted. Indeed, this is the second appeal pursued by Mr Warren, an appeal against the first Panel's finding having been allowed and the matter remitted for second hearing. Throughout the appeal process, Mr Warren has been subject to interim suspension with the result that he has now been suspended from practice for over 18 months.
Before I go further, I would like to say something about the representation. Mr Warren appears before me in person. He did not attend the Panel hearing that I am concerned with. He told me that that was because it was difficult for him to take time off work and he had found the whole experience stressful. That may sound a fairly weak explanation, given the significance of the proceedings for him. In the context of the troubling attention from the press it is possibly more understandable.
Mr Warren was represented at the Panel hearing by his aunt, Ms Percival. I understand that she has some legal training but is not a practising lawyer. Certainly she has no rights of audience before the High Court. However, she attended with Mr Warren to offer support and assistance. I have no doubt that she did so out of familial concern and with the best of motives. She was nothing but polite and courteous. However, I became concerned that her approach in advising Mr Warren may have been misguided.
Having heard Mr Warren in person (although I stress I did not hear evidence from him) it appeared to me it that he admits, as he has consistently done, that his conduct in having a relationship with Patient A and in having consensual intercourse with her on one occasion was inappropriate. However, when I was seeking to establish what Mr Warren's position was, Ms Percival was whispering to him and I wondered whether she was seeking to prevent him maintaining his admissions. My concern is that if this approach is allowed to continue, it risks concealing Mr Warren's true attitude to his past conduct. That may well be detrimental for him should a future Panel have to consider issues relating to insight and remediation.
The Panel who made the relevant decision faced a difficult task. When they came to consider the questions of impairment and sanction they had much written material before them but they did not have the opportunity to hear from Mr Warren. Had they done so, and had he expressed the regret that I believe is genuine, there might (and I put it no higher than that) have been a different outcome. Mr Warren had been suspended under the interim order for 12 months by then. Rather than continuing to challenge the findings and to pursue a second appeal, a better course for Mr Warren might have been to seek an early review and to present himself before the Panel so that they could consider whether in the light of the period of suspension he had then served that he might be permitted to return to nursing.
I do not and cannot say what the outcome of such a review would be, that would be a matter for the Specialist Panel after considering all the evidence presented to it. However, I observe that the option of a review remains open. Indeed, Ms Brownlee, who appears for the respondent, indicated that were I minded to dismiss this appeal, a request for an early review would be treated sympathetically. In making these observations, I recognise the difficulty faced by Litigants in Person and acknowledge the valuable role family members can provide in giving support and assistance. I do not mean to be unduly critical of Ms Percival but I felt it important to put on the record my concerns that her approach may not be in Mr Warren's best interests, despite her intentions.
I would also like to record my appreciation of the manner in which the respondent's position was presented by Ms Brownlee, her skeleton argument and her conduct of the appeal in court were impressive and she seems to me to have taken an entirely proper, helpful and balanced approach throughout.
Turning to the factual background, it is important I think that I set out the facts clearly. They are not in dispute. The appellant was a Registered Mental Health nurse and worked for an organisation engaged in drug and alcohol rehabilitation. From March 2012 to August 2013, he worked at one of their facilities where he became a named keyworker for Patient A, who was a recovering heroin addict engaged in rehabilitation. Having left that placement, some time between September and October 2013, the appellant invited Patient A to connect with him on Linked in. She accepted that invitation and they then communicated by email, text and telephone. The appellant shared private matters with Patient A and suggested that she should not tell other people that they had stayed in touch as it would not seem appropriate. They met for coffee on two occasions. Then, on 10 th January 2014, the appellant met Patient A and went to her home. This was at the instigation of Patient A. The appellant had been drinking. Patient A initiated consensual sexual intercourse. Following this, there was some further infrequent contact by text and email and on 1 st April 2014, Patient A made a complaint. So that it is clear, this is the full extent of the misconduct alleged against Mr Warren. I have deliberately kept the summary brief but I have referred to all the material before me and considered the totality of the evidence placed before the Panel.
The appellant has referred to the respondent's Fitness to Practise Directorate. The hearing in December 2015 was adjourned as Patient A had not attended. The adjourned hearing took place on 29 th March to 1 st April 2016. I note that Patient A did not attend that hearing and that contact with her has apparently not been maintained.
The appellant did attend the first hearing and he gave evidence at the first stage of the Panel's consideration. He was represented then by his aunt, Ms Percival. The Panel found that his fitness to practise was impaired by reason of misconduct and ordered his suspension for 12 months with a review before the expiry of the suspension.
The appellant appealed that decision. His appeal was heard by Popplewell J, in April 2017, and succeeded on one ground. As a result, the case was remitted for a new hearing before a differently constituted Panel. That hearing took place in October 2017. The appellant did not attend the hearing but was again represented by his aunt. There were two charges, the Panel found them both proved. In reality, they are admitted by Mr Warren. They went on to find that the facts proved amounted to misconduct. They then moved on to consider whether Mr Warren's fitness to practise was impaired. They found that it was. They moved to consider sanction, determining that Mr Warren should be suspended for 12 months with provision for a review. The Panel indicated that the Reviewing Panel may be assisted by Mr Warren's attendance in person although noted that that was a matter for him.
There are four grounds of appeal:
1) That the Panel's findings of fact and decision on misconduct were wrong or unjust because of a serious procedural or other irregularity.
2) The Panel gave no reasons for its determination that the appellant's actions amounted to a breach of the 2008 Code.
3) The Panel's decision on misconduct was wrong, in that the respondent submitted no or no sufficient evidence to discharge the burden of proof.
4) The Panel's determination on sanction should be remitted for determination, in that it was based on a matter on which there was no evidence.
Mr Warren confirmed that he primarily sought to challenge the...
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