Mohamed Lamin Mansaray v Nursing and Midwifery Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Stacey |
| Judgment Date | 02 February 2023 |
| Neutral Citation | [2023] EWHC 730 (Admin) |
| Docket Number | No. CO/3459/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 730 (Admin)
Mrs Justice Stacey DBE
No. CO/3459/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Ms Z Ahmed (instructed by the Royal College of Nursing) appeared on behalf of the Appellant.
Mr M Cassells (instructed by the Nursing and Midwifery Council) appeared on behalf of the Respondent.
This is an appeal by a registered nurse against the decision of the Fitness to Practise Committee (FPC or the Panel) of the respondent, the Nursing and Midwifery Council (“NMC”) made on 25 August 2022, that upheld allegations of misconduct and breaches of the Code of Conduct, specifically paras.1, 2, 8 and 20. It determined that the appellant's fitness to practise was currently impaired and that the appropriate sanction was to make an order striking his name from the register maintained by the respondent.
The appellant brings this appeal under Article 38 of the Nursing and Midwifery Order 2001 (the “Order”). The appeal focuses on the admission of hearsay evidence used in the disciplinary proceedings. There are four grounds of appeal.
Firstly that the Panel's reasoning on the hearsay application was flawed and unjust; secondly, the Panel's reasoning, following the admission of the hearsay evidence, was wrong in law; thirdly, that the appellant's right to a fair trial under Article 6 of the European Convention on Human Rights was breached; and, fourthly, an allegation of procedural irregularity, in that the bundle before the Panel included the hearsay evidence, before the hearing of the application and decision on whether to admit the contested evidence had been made. It was said that it should have been kept separate in a different folder prior to the decision on its admissibility.
Ms Ahmed, for the appellant, accepted that, if the Panel's findings were accepted, it would follow that there could be no challenge to the sanction imposed by the Panel.
Background
The background is as follows. The appellant was employed by Camden and Islington NHS Foundation Trust (“the NHS Trust”) as a Band 5 clinical nurse specialist on Emerald Ward at Highgate Mental Health Centre. The hospital is an acute in-patient ward with around 16 beds where patients stay between one to 18 months. The appellant joined the NHS Trust shortly after registering as a nurse in 2015 and was, thus, some three years qualified at the time of these events.
Patient A was admitted to the NHS Trust and placed in Emerald Ward in May 2018, under section 3 of the Mental Health Act 1983, and the appellant was assigned to him as his keyworker. Patient A was discharged around two months later, on 27 or 28 July 2018.
Allegations of misconduct were referred to the respondent on 18 October 2018 by the appellant's employer, the NHS Trust, after they had conducted an internal investigation and a disciplinary process. The outcome of the disciplinary proceedings is not apparent from the bundle as the relevant paragraphs have been redacted. The appellant was found by the NHS Trust to have failed to maintain appropriate professional boundaries and to have breached the professional standards of expected conduct by his contact with Patient A, following Patient A's discharge from Emerald Ward. The appellant had also failed to report or record his continuing involvement with Patient A: in effect, forming a personal relationship with a patient, which he attempted to keep secret.
In the internal investigation, the matter had come to the Trust's attention following a complaint by Patient A's parents. No statement had been taken from Patient A and all that was known by the NHS Trust was what the parents had reported, which, at that stage, was of inappropriate contact and nothing more.
On referral to the respondent, Ms Uzma Mahmood, was appointed investigator and, as part of her investigation, she spoke to Patient A about his relationship with the appellant. She undertook that interview with the consent of Patient A's care co-ordinator, Ms Sarah Michael, a community mental health nurse. At that stage, Patient A was willing to engage with the NMC investigation and, with Patient A's consent, Ms Michael arranged for her and Patient A to attend the NMC office in Stratford for the interview, with the additional support of the respondent's public support service prior to the interview.
At the interview, Patient A disclosed that whilst he was on Emerald Ward and had his own private room the appellant had made sexual advances towards him and had engaged in sexual activity with him. As Patient A was being discharged from the ward, the appellant had given his phone number to Patient A and told him to get in touch. There were then regular phone calls, texts and WhatsApp messages and a number of missed calls between Patient A and the appellant over the following four-week period.
During that period, the appellant also took Patient A to restaurants, such as KFC and Nando's, according to Patient A's disclosures, and Patient A said that he had been to the appellant's house on a couple of occasions and they had engaged in sexual activity.
Patient A appeared uncomfortable as he was making the disclosures and Ms Mahmood suggested that the interview take a short break. On resuming ten minutes later, Patient A did not want to continue the discussion and stated that the appellant was just a nurse doing his job, like any other nurse, and being friendly. The allegations of a sexual element to the relationship were not repeated by Patient A and he became disengaged and the interview concluded.
Ms Mahmood had a number of further questions that she wished to put to Patient A, such as when the appellant had started to become over friendly, how many times there had been sexual encounters in Emerald Ward and more details of what had happened on the occasions when Patient A had been to the appellant's house.
However, on 12 September 2019, Patient A's consultant psychiatrist, Dr Jennifer Perry, informed the respondent not to contact Patient A as he had recently attempted suicide and it would not be conducive to his mental health recovery for her to make contact with him for the time being. Ms Mahmood followed that advice. Patient A then took his own life on 5 February 2020.
During the interview of 23 August 2019, Ms Mahmood had taken brief handwritten notes. Ms Michael, who was also present, did not make a contemporaneous record.
Patient A had had a diagnosis of paranoid schizophrenia, mixed personality traits and substance abuse issues at the time of the events we are concerned with. Ms Michael's opinion was that he might have other or additional personality disorders. He had a history of self-harm and suicide and had been a user of cannabis and cocaine at various times when he was 25 years old.
Following the investigations by the NMC and Ms Mahmood, 13 disciplinary charges were formulated that the appellant:
(1) Had provided his personal telephone number to Patient A on or around 27 July 2018;
(2) Had communicated, or had attempted to communicate, with Patient A on 17 listed dates between 28 July and 19 August 2018 (each date was recorded as a separate letter, so the allegations were framed as 2(a)-(q);
(3) On 7 August 2018 had met Patient A at a restaurant and, on the same day, driven him in his (referring to the appellant's) car;
(4) On 8 August 2018 had taken Patient A to his (the appellant's) home;
(5) On 9 August 2018, or a date other than 7 August 2018, had met with Patient A at a restaurant and driven Patient A in his (the appellant's) car;
(6) On 17 August 2018 had permitted Patient A to come to his (the appellant's) house;
(7) On 22 August 2018 had given a false name to Patient A's mother;
(8) Had failed to record, other than a single entry on 7 August 2018, any of his contact with Patient A in allegations (1) to (7) on Patient A's care notes;
(9) Had failed to inform his line manager or matron about his (the appellant's) post-discharge contact with Patient A;
(10) That the actions at one or more of charges (1) to (7) were a breach of professional boundaries;
(11) That the actions at one or more of charges (1) to (7) were sexually motivated, in that he (the appellant) intended to pursue a future sexual relationship with Patient A;
(12) On an unknown date between June and 27 July 2018, whilst on Emerald Ward, had exposed his (the appellant's) penis to Patient A and touched Patient A's penis;
(13) Had on a date or dates unknown after 27 July 2018 engaged or attempted to engage in sexual activity with Patient A; and
in light of the 13 allegations, the appellant's fitness to practise was impaired by reason of his misconduct.
Most of the allegations were admitted by the appellant. In dispute only were firstly, whether the appellant had communicated or attempted to communicate with Patient A on 28 July and 4 August...
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