Penny Ann Lavis v Nursing and Midwifery Council

JurisdictionEngland & Wales
JudgeThe Honourable Mr. Justice Cobb
Judgment Date05 December 2014
Neutral Citation[2014] EWHC 4083 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date05 December 2014
Docket NumberCase No: CO/2896/2014

[2014] EWHC 4083 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Cobb

Case No: CO/2896/2014

Between:
Penny Ann Lavis
Appellant
and
Nursing and Midwifery Council
Respondent

Sarah Christie-Brown (instructed by Legal Services Directorate of the Royal College of Nursing) for the Appellant

Louise Hoggett-Jones (instructed by Nursing & Midwifery Council Regulatory Legal Team) for the Respondent

Hearing dates: 18 & 19 November

The Honourable Mr. Justice Cobb

Introduction

1

By formal Notice dated 23 June 2014, Ms Penny Lavis (hereafter the 'Appellant'), a registered midwife, brings an appeal pursuant to Article 38(1)/(4) of the Nursing and Midwifery Order 2001 against the determination by a panel of the Respondent Nursing and Midwifery Council (NMC)'s Conduct and Competence Committee ('CCC Panel' or 'Panel'), dated 27 May 2014. By its determination the Panel suspended the Appellant from practise for a period of 4 months.

2

The Appellant does not challenge the Panel's rulings on misconduct, impairment and/or sanctions except insofar as those decisions are, or may be, affected by a successful appeal in respect of a number of factual findings of the Panel. If successful, the Appellant applies for an order which quashes the decision of the Panel in relation to five limbs of charge 1(g) (see generally [37–70] below), and requests that the case be remitted to a fresh panel to determine impairment and sanction. Alternatively, she applies to remit those aspects of charge 1(g) to a fresh panel to re-determine the facts before going on to consider impairment and sanction.

3

In determining this appeal, I received helpful oral and written submissions from counsel for the parties; I have read extracts from the extensive transcript of the lengthy disciplinary proceedings. I have had access to, and have read selected items from, the bundle of statements and exhibits which was prepared for the Panel hearing.

4

By this judgment I set out my reasons for allowing the appeal in part. In doing so, I have considered matters as follows:

Background

1.

Background

§5–10

2.

The Charges & Panel Decision

§11–14

3.

Grounds of Appeal (and amendment)

§15

4.

Appeal against findings of fact

§16–26

5.

Findings of credibility

§27–36

6.

Charge 1(g)(ii)

§37–41

7.

Charge 1(g)(iii)

§42–43

8.

Charge 1(g)(vi)

§44–48

9.

Charge 1(g)(vii)

§49–52

10.

Charge 1(g)(viii)

§53–70

11.

Conclusion

§71–73

Schedule A: Chronology of relevant key events

Schedule B: Charges and Panel Decision summary

5

The Appellant has been a nurse for over 30 years; she qualified as a midwife in 1991, and is now a Band 6 registered midwife. She has (as the Panel accepted and recorded) never previously been before the CCC Panel of the NMC, nor has she been the subject of any prior allegations or complaints. At the time of the events in question she was employed by the Mid Essex Hospital Services NHS Trust ("the Trust").

6

In the early hours of 12 June 2011, Ms A was admitted as a low-risk patient to the midwife-led birthing unit of the Broomfield Hospital, Chelmsford; this was her first pregnancy, and she was 41 weeks pregnant. On arrival on the labour ward, she was assigned to the Appellant as her midwife. In a witness statement dated 17 September 2012, Ms A describes the events of that night; I have read that statement with care, together with those passages of the transcript of the cross-examination of Ms A to which my attention was drawn, and the medical notes. It was in very large part upon Ms A's evidence that the charges against the Appellant were founded.

7

In her written statement, Ms A expressed a general dissatisfaction with the manner in which she was treated on the labour ward, and how her care was managed by the Appellant during labour; she records that she was not made to feel at ease by the Appellant, and complains that throughout the 3 1/2— 4 hours on the ward, the Appellant failed to provide relevant support and/or information. Against that background, Ms A makes a number of specific complaints which translate into the charges which were, in due course, brought against the Appellant and were the subject of the disciplinary process.

8

The relevant sequence of events has been summarised by me in a chronology which is appended to this judgment as Schedule A. Of particular interest are the entries in Schedule A at (vi), (vii), (xxi), (xxii) which I reproduce into the body of this judgment (below) for ease of reference:

vi.

01:45

Medical records: " [Ms A] struggling and requires further analgesia and wishes to enter water and be reassessed to see if she has progressed sufficiently to enter water. Asked & discussed arm [A.R.M.: 'Artificial Rupture of the Membranes']. Discussed pros and cons" (emphasis by underlining added)

890 / 858

Ms A states that the Appellant suggests breaking her waters; Ms A agrees.

858

vii.

02:00

Medical Notes: " VE at patients request to assist progress attempt arm [ARM] & enter if sufficient progress. FHR 136 prior to procedure… heavy blood stained show … old meconium staining noted." " No cord felt" (emphasis by underlining added)

891/ 858 / 859 / 893

9

And later:-

xxi.

03:30

" Pad changed … seated leaning over pool … left to c/o other woman" The pad change is disputed by Ms A

896/ 860

xxii.

03:45

Record: " when got on bed + comfortable + pants removed noticed cord at perineum descending. Immediately pressed buzzer and asked [Ms A] to put head down + bottom in air whilst I put on gloves and placed right hand in perineum to push foetal head into pelvis + alleviate pressure on cord." (emphasis by underlining added)

861 / 893 / 896

10

Given the death of Ms A's baby within a very few days of his birth, the hospital conducted a number of enquiries and investigations, including a 'Serious Incident Investigation', a 'Root cause Analysis' and a 'Supervisory Investigation'. One of those investigations focused on the allegation that the Appellant had falsified Ms A's handheld records while tending to her during labour; this investigation led to a conclusion that the " allegations were not upheld". I refer to this only for completeness as it was drawn to my attention during the course of argument at this appeal hearing. I have not attached any weight to this conclusion, given that I know nothing about the scope, depth or rigour of the investigation.

The Charges & Panel Decision

11

It is convenient, and appropriate, that I set out the details of the charges faced by the Appellant in their entirety, recording against each one the finding of the Panel. I attach this summary as Schedule B to this Judgment.

12

In summary, it was alleged that, whilst employed as a registered midwife by the Trust, the Appellant failed on 12 June 2011 to provide adequate care to Ms. A and/or her unborn baby. This involved aspects of clinical care, and recording of her care.

13

The Panel hearing took altogether 16 days; there were 7 days of evidence on determination of the facts, a further day of evidence on the issue of impairment. Eight other days were occupied with legal argument (including a lengthy 'abuse of process' determination, and a separate submission of no case to answer), closing submissions, and decisions.

14

The NMC alleged, and the Panel in due course found, that in light of the factual findings of a number of the charges proved, the Appellant's fitness to practise is/was impaired by reason of her misconduct, and imposed a 4 month suspension from practise.

Grounds of Appeal (and amendment)

15

By this appeal, the Appellant originally challenged only the findings on charges 1(g)(ii) / (iii) / (vi) / (vii) / (viii) (see Schedule B). At the outset of the appeal hearing, Miss Christie-Brown for the Appellant sought to amend the Notice of Appeal (pursuant to CPR Pt52.8), to include also a challenge to charges 1(e) and 1(f)(i); this proposed amendment was designed to address a potential inconsistency in the Appellant's case in respect of the Panel's findings on charges 1(g)(ii) and (iii). The Appellant had not accepted before the Panel (and still does not accept) that she had not explained the risks and benefits of the Assisted Rupture of the Membranes ('ARM') to Ms A prior to conducting the procedure; she further contended, and contends, that it was Ms A who requested the ARM. Hence her record reflected her account of those events, as she portrayed them. This application to amend the Notice of Appeal was not opposed, and I granted permission; indeed, I readily recognised the evidential overlap between charge 1(e) and (f)(i) and (g)(ii)/(iii), and considered it appropriate in all the circumstances that I should (as proposed by Miss Christie-Brown) review the evidence and findings in relation to the actual events before turning to consider the Panel's conclusions on the Appellant's recordings of the same.

Appeal against findings of fact

16

The burden falls on the Appellant to demonstrate in this appeal that the Panel was 'wrong' ( CPR 52.11(3)) in its determinations. It is not necessary for the Appellant to demonstrate that the Panel was 'plainly' wrong ( Re B (Care Proceedings: Appeal) [2013] UKSC 33 at [44] viz: " it is generally better to allow adjectives to speak for themselves without adverbial support") or indeed 'clearly' wrong ( GMC v Meadow & Attorney General [2006] EWCA Civ 1390 per Auld LJ at [125]: " I doubt whether the adverbial emphasis of "clearly" adds...

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    ...to be invariably applied: see Uddin v GMC [2012] EWHC 2669, per Singh J; Mills v GDC [2014] EWHC 89 (Admin) per Patterson J; Lavis v Nursing and Midwifery Council [2014] EWHC 4083 (Admin) per Cobb J; Sharma v GMC [2014] EWHC 1471 (Admin) per HHJ Pelling QC; Hussein v GMC [2014] EWCA (Civ) 2......
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