Northwest London Hospitals NHS Trust v Bowater
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Stanley Burnton,Lord Justice Longmore,Lord Justice Laws |
| Judgment Date | 03 February 2011 |
| Neutral Citation | [2010] EWCA Civ 839,[2011] EWCA Civ 63 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2010/0020 |
| Date | 03 February 2011 |
[2010] EWCA Civ 839
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge Mcmullen QC)
Before: Lord Justice Mummery
Case No: A2/2010/0020
Mr Deshpal Panesar (instructed by Thompsons Solicitors) appeared on behalf of the Appellant.
The Respondent Did Not Appear And Was Not Represented.
Lord Justice Mummery:
I will not give a judgment on the merits. That can sometimes create an impression that is not intended. I would simply say that on the basis of your skeleton argument and your statement I find there are real prospects of this appeal succeeding, and I therefore grant permission to appeal.
That does not mean that the appeal will succeed. It may succeed; it may fail. And if it fails, as I have pointed out, you risk consequences on costs. But you have pointed out to me that if permission to appeal is given, which it has been, then the union will indemnify your client in relation to the costs consequences of losing the appeal.
And I have given you leave to amend your grounds of appeal and your skeleton argument, if so advised, within two weeks in relation to the possibility that one outcome of the appeal is that the matter is remitted—that is just one possibility—to a different tribunal for reconsideration.
Order: Application granted
[2011] EWCA Civ 63
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge Mcmullen QC
Before : Lord Justice Laws
Lord Justice Longmore
and
Lord Justice Stanley Burnton
Case No: A2/2010/0020
Hearing date: 27 th January 2011
Lord Justice Stanley Burnton :
Introduction
This is the appeal of Laura Bowater from the decision of the Employment Appeal Tribunal ("the EAT") allowing the respondent's appeal against the decision of the Employment Tribunal ("the ET") that she had been unfairly dismissed by the respondent, her employer the Northwest London Hospitals NHS Trust.
The facts
Between April 2002 and 1 December 2006, when she was dismissed on the ground of gross misconduct, the appellant was employed by the respondent as a Senior Staff Nurse.
The incident giving rise to her dismissal occurred on 11 July 2006 at the Central Middlesex Hospital. The appellant was leaving the hospital at the end of her shift when she went to the aid of her colleagues who were seeking to restrain and to pacify a patient who was having an epileptic fit. I can take the facts of the incident from the decision of the EAT which quoted the decision of the ET:
7. The incident took place at 8.00pm on 11 July 2006 in the Accident and Emergency Department. The nursing team was under the control of Charge Nurse Lee. The medical care was in the hands of Dr Tong. A patient, D, was admitted with the assistance of two members of the London Ambulance Service. He is a strong young man. Dr Tong directed the nursing staff to place him on a trolley, he apparently being assisted on foot into the department.
8. The Claimant was leaving her shift. She had stayed on to assist; it is not contended that she was doing anything other than attempting to help. The Tribunal described the incident:
"4.8 It was clear to the Claimant and a colleague of hers, who was also leaving work, that the nursing team had lost control of restraining patient D. He was extremely strong, his fitting was causing him to be violent towards the nursing team and Dr Tong was desperately trying to give patient D an injection of diazepam to calm him down before he injured himself or inflicted injury on the nursing team. To do this, Dr Tong required the nursing team to remove patient D's trousers and underwear so that he could gain access to administer a shot of diazepam into patient D's buttocks. The trousers of patient D were therefore removed leaving his bottom half naked. Although a hospital gown was placed over him, this was soon brushed off by the erratic movements of patient D.
4.9 Diazepam was then injected into patient D but it had no effect. Dr Tong then suggested that by attempting to restrain the patient, they may be exacerbating his hostile behaviour. In those circumstances, the advice he gave to the nursing team was to release whichever limb or part of patient D's body each member of the team was holding. However, once this happened, patient D attempted to climb off the trolley and, in particular, turned himself over from lying in a prone position to lying in a supine position, thereby exposing his private parts to full view by the team.
4.10 The Claimant and her colleague had come to assist with the restraint of patient D. Restraining the patient was particularly hampered by reason of the size of the trolley with its sides in position, thereby preventing the restraint team from getting a good grip on a particular limb of patient D. (In retrospect it would have been much easier to have restrained patient D if had been held down on the floor.)
4.11 By this time, Dr Tong was desperately trying to administer a further injection, this time 4mg of lorazepam, and was leaning over the patient's torso but was unable to administer the injection because of the patient thrashing around. Patient D was kicking his legs and flailing his arms.
4.12 It was at this point that the vital incident relevant to this case took place. The Claimant was at the bottom of the trolley, attempting unsuccessfully to hold down patient D's ankles. So she climbed on to the end of the trolley and sat herself astride his ankles. This was at a time when the patient D was in the prone position. When patient D turned himself over into the supine position, he managed to kick the Claimant between her legs and lifted her up so that she then landed astride patient D's naked genitals. That action of the Claimant allowed sufficient time when patient D was being restrained for Dr Tong to administer the further injection which eventually caused patient D's hostile behaviour to subside. At no time during the incident was patient D capable of understanding what was going on or what had been said."
9. It took some time (six weeks) for an allegation to surface that, while straddling the patient, the Claimant said this: "It's been a few months since I have been in this position with a man underneath me". Interviews were conducted by Ms Winn for the purposes of establishing the circumstances of the incident. A medical practitioner, Dr Wilson, reported to Ms Winn that the Claimant had made a similar comment to her while they were together in the washroom, shortly after the incident. Ms Winn interviewed Charge Nurse Lee. The Tribunal found no attempt was made to locate Dr Tong. Ms Winn came to the conclusion that the Claimant had been guilty of two relevant acts of misconduct, which were put in the following way:
"4.17.1 That she had used an unacceptable and unprofessional method of restraint on the patient D and
4.17.2 that whilst straddling patient D, who was naked, she had made a remark to the effect: 'it has been a few months since I've been in this position with a man underneath me'."
10. There was a case to answer because Ms Winn considered that the incident had occurred in the A&E Department, where it could have been witnessed by a relative or a member of the public. Ms Winn was alert to the problem that the Respondent had no proper training document in relation to restraint of a difficult person. The Claimant's employment is regulated by a contract which incorporates the Code of Professional Conduct of the Nursing and Midwifery Council. This makes the Claimant personally accountable to ensure that she promote and protect the interests and dignity of patients, and at all times maintain appropriate professional boundaries in the relationship she has with patients (see clauses 2.2 and 2.3).
11. The case was heard by Ms Mackie, Senior Nurse, complimented on her experience in nursing by the Employment Tribunal, and Ms Le Tissier, head of HR governance. The outcome of that panel, where evidence was given by the Claimant and other witnesses, was this:
"The findings of the panel are that your behaviour was:
• An act of gross misconduct in that you breached the Nursing and Midwifery Council code of professional conduct: standards of conduct, performance and ethics. As a result of these findings the panel drew the following conclusions:
Allegation 1
• That you failed in your duty of care to your patients and clients who are entitled to receive safe and competent care (NMC para 1.4).
• That you failed in your duty, in that you are personally accountable for ensuring that you promote the interests and dignity of patients and clients (NMC para 2.2).
Based on the evidence, the allegation is upheld and constitutes gross misconduct.
Allegation 2
• That you failed to behave in a way that upholds the reputation of the profession (NMC para 7.1).
Based on the evidence, the allegation is upheld and constitutes gross misconduct.
As a result of these conclusions, the decision of the panel is to...
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