Michelle Jane Margaret Harford v The Nursing and Midwifery Council
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Wyn Williams |
| Judgment Date | 10 April 2013 |
| Neutral Citation | [2013] EWHC 696 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 April 2013 |
| Docket Number | Case No: CO/12239/2012 |
[2013] EWHC 696 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Wyn Williams
Case No: CO/12239/2012
Gabriel Beeby (instructed by Jonathan Green of RCN) for the Appellant
Neil Moloney for the Respondent
Hearing date: 28 February 2013
Approved Judgment
Introduction
The Appellant is a registered nurse. On 19 October 2012 a Conduct and Competence Committee of the Respondent (hereinafter referred to as "the Panel") found that the Appellant's fitness to practise was impaired on account of her misconduct. The Panel decided to impose a sanction; the sanction imposed was a conditions of practice order for a period of six months. As is her right, the Appellant appeals to this court against the finding that her fitness to practise was impaired by reason of misconduct and against the sanction imposed upon her.
The Respondent's powers
The Respondent was established by Article 3 of the Nursing and Midwifery Order 2001. Part V of the Order is entitled "FITNESS TO PRACTISE". Article 21 provides:-
"(1) The Council shall �
a) establish and keep under review the standards of conduct, performance and ethics expected of registrants�..; and
b) establish and keep under review affective arrangements to protect the public from persons whose fitness to practise is impaired."
Article 22 applies where any allegation is made against a registrant to the effect that his fitness to practise is impaired by reason of misconduct. Where such an allegation is made the Respondent is empowered to refer it to a practise committee.
Article 22(4) provides:-
Rules may provide that where a Practise Committee finds that a person has failed to comply with the standards mentioned in Article 21(1), such failure shall not be taken of itself to establish that his fitness to practise is impaired, but may be taken into account in any proceedings under this Order."
Article 29 defines the powers of the Panel. In the event that a Panel concludes that a registrant's fitness to practise is impaired on account of misconduct the Panel may take action in accordance with Article 29( 4) or (5). They provide:-
"(4) The Committee may �
a) refer the matter to Screeners for mediation or itself undertake mediation, or
b) decide that it is not appropriate to take any further action.
(5) where a case does not fall within paragraph (4), the Committee shall �
a) make an order directing the Registrar to strike the person concerned off the register (a) "striking-off order");
b) make an order directing the Registrar to suspend the registration of the person concerned for a specified period which will not exceed one year (a) "suspension order");
c) make an order imposing conditions with which the person concerned must comply for a specified period which will not exceed 3 years (a) "conditions practise order"); or
d) caution the person concerned and make an order directing the Registrar to annotate the register accordingly for a specified period which shall not be less than one year and not be more than 5 years (a) caution order")"
Appeals against decisions of the Panel
Under Article 38 of the Order an appeal from a decision of the Panel lies to this court. The court's powers are defined by Article 38(3)(a) to (d) which is in the following terms:-
"(3) The court �..may �
a) dismiss the appeals;
b) allow the appeal and quash the decision appealed against;
c) substitute for the decision appealed against any other decision that the Practice Committee concerned or the Council, as the case may be, could have made; or
d) remit the case to the Practice Committee concerned or Council, as the case may be, to be disposed of in accordance with the directions of the court�.
and may make such order as to costs �..as it,�.as the case may be, thinks fit."
In determining an appeal the court applies CPR 52.11. That provides:-
"1. Every appeal will be limited to a review of the decision of the lower court unless �
(a) a practice direction makes different provision for a particular category of appeal; or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
2. Unless it orders otherwise the appeal court will not receive �
(a) oral evidence: or
(b) evidence which was not before the lower court.
3. The appeal court will allow an appeal where the decision of the lower court was �
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
4. The appeal court may draw any inference of fact which it considers justified on the evidence.
5. At the hearing of the appeal a party may not rely on a matter not contained in his appeal notice unless the appeal court gives permission."
There are a plethora of decisions upon the approach which a judge should take when conducting an appeal from statutory health care regulators such as the Respondent or the General Medical Council. In Meadow v GMS [2007] QB 462 Auld LJ expressed himself thus:-
"On an appeal from a determination by the GMC�..it is plain from the authorities that the court must have in mind and give such weight as is appropriate in the circumstances to the following factors:
i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect;
ii) The Tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides;
iii) The questions of primary and secondary fact and the over-all value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers."
Both Mr Beeby for the Appellant and Mr Moloney for the Respondent commend that approach to me.
Undisputed facts
The Appellant began working in the health care sector in or about 1984. In 2005 she became a registered nurse. Immediately after qualification she worked in the haematology department of a hospital in Plymouth. Over the next four or five years she worked in a variety of capacities until she became the practice nurse in a practice based in Bristol and operated by a single doctor, Dr Sharples. The Appellant commenced that employment on 5 July 2010.
During the material time Dr Sharples employed a small number of persons. As I understand it each of the surgeries had a receptionist; Dr Sharples also employed the Appellant, a practice manager, Ms Rosemary Murton and a phlebotomist to whom I shall refer as A. A had been employed by Dr Sharples for over 10 years when the Appellant began her employment and she had qualified as a phlebotomist during that period.
In December 2010 the Appellant informed Ms Murton that she had received oral adverse comments from patients about A's venipuncture skills. The two women discussed the way forward. It is common ground that no formal or written complaints were registered by any patient. Nonetheless during the ensuing months the Appellant received further oral complaints and she informed Ms Murton that complaints had been received.
On 26 May 2011 A was due an annual appraisal. Appraisals were normally attended by Dr Sharples and Ms Murton. It was agreed, however, that the Appellant would also attend the appraisal on this occasion. The appraisal did not take place. There is a dispute about the reasons why.
On the day upon which the appraisal should have taken place Ms Murton received a letter of complaint from a patient. The letter is dated 23 May 2011 and related to an incident which had occurred on 21 April 2011. In summary, the patient complained that A had taken 3 attempts to obtain blood from her before succeeding.
On 2 June 2011 a meeting took place at which Dr Sharples, Ms Murton, the Appellant and A attended. Ms Murton made contemporaneous notes of what transpired at the meeting. The Appellant outlined the substance of the adverse comments/complaints which she had received from patients. A expressed surprise and upset about the alleged complaints and responded, so far as she could, to what the Appellant had said about the nature of the complaints. Ms Murton's note of the meeting ends as follows:-
"Action to be taken: RM [Ms Murton] to seek refresher course for A. She will then be assessed by MN [the Appellant] who will sit in on her phlebotomy sessions until MN is satisfied with her competency.
� In the interim she will not take blood from anyone. She will focus on her Stop Smoking and summarising work. She will inform RM when she needs more work. RM has found no record of the venepuncture course in the personnel files but A had a copy in her PDP portfolio. RM will copy and let MN have details.
� MN and CJS [Dr Sharples] to review the clinical protocols.
� CJS will investigate the allegations pending feedback from RCN."
It appears that the Appellant had sought to involve the Royal College of Nursing in what was occurring by this stage.
During the next week or so there were email exchanges between Ms Murton and the Appellant. On 16 June 2011 a meeting took place between Dr Sharples, Ms Murton and the Appellant. In a letter dated 20 June 2011 the doctor wrote "to confirm the summary of outcomes as agreed�" The substance of the letter is as follows:-
"Following RCN protocol, you collated a list of patients from whom A has taken blood. These patients have allegedly raised a range of concerns with you and this has prompted you to deem A unsafe to practice venepuncture. Rosie has only had one letter from a patient addressing this. It stated that A took 3 attempts to get an INR sample on one occasion and that A...
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Public And Regulatory Law Group Alerter May 2013
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