Kathyrn Amanda Jordan El Karout v Nursing and Midwifery Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Spencer |
| Judgment Date | 11 January 2019 |
| Neutral Citation | [2019] EWHC 28 (Admin) |
| Docket Number | Case No: CO/2392/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 January 2019 |
[2019] EWHC 28 (Admin)
Mr Justice Spencer
Case No: CO/2392/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant appeared in person
Mr Loran (instructed by the NMC) for the Respondent
Hearing dates: 18 th October and 5 th November 2018
Approved Judgment
Introduction and overview
This is an appeal pursuant to Article 38 (1) of the Nursing and Midwifery Order 2001 against the decision of the Nursing and Midwifery Council's (“NMC's”) Fitness to Practise Committee (“the Panel”) contained in a notice of decision letter dated 23 rd May 2018, in which the Panel determined that the appellant's fitness to practise as a midwife was impaired by reason of her misconduct, and that the appropriate sanction was an order striking her off the register. This decision was made at the conclusion of a hearing lasting seven days, from 14 th to 22 nd May 2018, at which the appellant was represented by counsel, Ms Emma Shafton and the NMC were represented by counsel, Mr Christopher Harper.
In short the allegation was that on the ward where she worked the appellant had stolen packs of dihydrocodeine tablets prescribed for patients to take home when discharged from hospital after giving birth, and had falsified medical records to facilitate and conceal the thefts. It was alleged that the appellant had stolen dihydrocodeine in this way in relation to seven patients, although the Panel found the allegation of theft proved in relation only to five of the seven.
The relevant events took place in June and July 2015. The delay of nearly three years before the disciplinary proceedings were heard arose in part because there were criminal proceedings which did not conclude until March 2017. The appellant was tried in the Crown Court for the offences of theft alleged in relation to two of the patients. She was acquitted by the jury.
The appellant had some 20 years' experience as a midwife, with no previous findings of misconduct. She was employed as a Band 6 midwife by Brighton and Sussex University NHS Trust from September 2014 until her dismissal on 6 th November 2015. In 2014, a year or so earlier, there had been a series of episodes of the theft or disappearance of dihydrocodeine within the maternity unit. There was no suggestion that the appellant was responsible. In November 2014 the Trust introduced a new procedure for the withdrawal and administration of dihydrocodeine by requiring that it be stored and treated as a controlled drug. A procedure was put in place which required two midwives to sign out the medication from the controlled drugs cupboard.
Dihydrocodeine is an opiate based strong painkiller. It was commonly prescribed for patients “to take out” (“TTO”) when discharged home, along with paracetamol and ibuprofen. In the controlled drugs register, kept in the drugs cupboard, a record had to be made of the date and time when the medication was withdrawn from the store, the patient's name and the amount given. Two signatures were required, one “given by” and one “witnessed by”. The balance of the drug remaining in the store after each withdrawal was required to be recorded. The procedure did not require that both midwives signing for the medication had to be present when it was actually given to the patient. But both had to be present when it was withdrawn from the store. Nor did the medication have to be handed to the patient by the midwife signing as “given by” rather than “witnessed by”.
The TTO medication had to be authorised and prescribed by a doctor, on a printed form headed “discharge note and prescription”, commonly referred to as a TTO form. This listed the drugs the patient was to take home. The procedure was that a copy of the form should be handed to the patient, and another posted to the patient's GP. A copy should also be attached to the patient's notes and a further copy given to the hospital pharmacy. It was a feature of the evidence before the Panel that these requirements were not always observed, and the Panel did not base their findings upon any shortcomings in the completion of TTO forms.
The thefts of dihydrocodeine alleged to have been committed by the appellant spanned a period of a fortnight or so between 20 th June and 6 th July 2015. On Saturday 20 th June the appellant had just returned to work from an extended period of sick leave. Suspicion first fell on the appellant on 1 st July when it was discovered that one of the patients about to be discharged home, Patient A, did not have in her pack of TTOs the dihydrocodeine which the appellant had signed out in the drugs register and had purportedly given to the patient along with paracetamol and ibuprofen. This was discovered after the appellant had gone off duty from the night shift during which the dihydrocodeine had been signed out. After a thorough search the missing dihydrocodeine could not be found.
Over the next few days an investigation was carried out, overseen by the manager of maternity and gynaecology services, Ms 3. In the controlled drugs register six other patients were identified for whom the appellant had signed out dihydrocodeine as part of their TTO medication. Each of these six patients was telephoned at home to establish whether she had in fact received and taken home dihydrocodeine as part of her TTO pack. In each case the response was that no dihydrocodeine had been given. The results of this investigation were rather sketchily reported in a document described as an “audit”. The dihydrocodeine which should have been given to these other women, Patients B, C, D, E, F and G, had been signed out on dates between 20 th June and 30 th June. The appellant was not alerted at that stage to the investigation that was now in progress.
On 6 th July Patient A was readmitted to hospital for further treatment. She was discharged the same day, again without dihydrocodeine as part of her TTOs. Again, however, the appellant had signed for the withdrawal of dihydrocodeine for Patient A.
Following this the police were informed. Ms 3 and her colleague Ms 1, a lead midwife who had also taken part in the exercise of telephoning the patients, made witness statements to the police on 9 th July. On 10 th July 2015 the appellant was arrested by the police at the hospital, on the ward where she worked. She was searched. In her handbag the police found an empty torn packet of dihydrocodeine tablets. The box was labelled for Patient B who had been discharged from hospital on 24 th June. The dihydrocodeine had been prescribed for her as part of her TTO medication but she did not want it. It was common ground that the appellant had failed to return the unwanted pack of dihydrocodeine to the drugs cupboard. Her case was that she had put the packet in her back pocket, and because she was distracted by her duties she had forgotten to return the packet before the end of her nightshift. It was only as she was driving home that she realised she still had the packet in her possession. In a panic she had thrown the tablets away but retained the box in her handbag and had forgotten thereafter that she still had it.
Following her arrest the appellant was suspended from her employment on 10 th July. On 1 st September 2015 the NMC received a referral from her employers about her fitness to practise. On 15 th September 2015 the NMC notified the appellant that the investigation was being referred to the Case Examiners for consideration. However, the NMC investigation was put on hold until the conclusion of the police investigation.
For reasons which are unclear the police investigation and subsequent prosecution were unduly protracted. Following her acquittal in the Crown Court on 27 th March 2017, the matter was investigated further by the Case Examiners. On 29 th December 2017 the case was referred to the Fitness to Practise Committee.
The charges
The charges were framed as follows:
That you, a registered midwife;
1) Between 20 June 2015 and 6 July 2015
a) Incorrectly signed and/or countersigned that TTO medication consisting of dihydrocodeine had been given to one or more of the Patients on the dates listed in Schedule 1 in the controlled drug record book;
b) Your actions above were dishonest in that you deliberately falsified the records of one or more of the Patients listed in Schedule 1 to make it appear as though they had been given dihydrocodeine when they had not in fact been given this medication;
2) Stole medication that was recorded as being given to one or more of the Patients listed in Schedule 1;
AND in light of the above, your fitness to practise is impaired by reason of your misconduct.
Schedule 1
Patient A
30 June 2015
Patient A
6 July 2015
Patient B
24 June 2015
Patient C
22 June 2015
Patient D
20 June 2015
Patient E
27 June 2015
Patient F
30 June 2015
Patient G
27 June 2015
At the conclusion of the hearing the Panel found Charge 1(a) proved in relation to Patients A, B, C, D and G, but not proved in relation to Patients E and F. The Panel found Charge 1(b) proved in relation to Patients B, C, D and G, but not proved in relation to Patients A, E and F. The Panel found Charge 2 proved in relation to Patients A, B, C, D and G, but not proved in relation to Patients E and F. The Panel decided that as a result of this proved misconduct the appellant's fitness to practise was currently impaired. Having considered the aggravating and mitigating factors, the Panel decided that the only appropriate sanction was a striking-off order. An interim suspension order was made for a period of 18 months to allow for the possibility of an appeal.
The grounds of appeal
The appellant...
To continue reading
Request your trial
-
Jonathan Ullmer v Secretary of State for Education
...a rehearing as “ more interventionist”. In support of this submission, Mr Faux relied on El Karout v Nursing and Midwifery Council [2019] EWHC 28 (Admin), in which a hearsay issue “ was not clearly ventilated in the grounds of appeal, or in the appellant's skeleton argument or in the respo......
-
Appeal By Lm Against A Decision Of The General Teaching Council For Scotland
...not have been admitted. Decision on para 1(b) [52] The panel incorrectly applied the law on hearsay particularly El Karout v NMC [2019] EWHC 28 (Admin) and Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565 (Admin). It failed to apply the principles applicable to admission of suc......
-
Mohamed Lamin Mansaray v Nursing and Midwifery Council
...statement and the circumstances of the interview by Ms Mahmood, in which regard reliance was placed on the case of El Karout v NMC [2019] EWHC 28 (Admin) & [2020] EWHC 3079 (Admin), where a criticism was made of statements taken during a welfare telephone interview being 47 It is accepted ......