Professional Standards Authority for Health and Social Health Care v Nursing and Midwifery Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn |
| Judgment Date | 04 December 2019 |
| Neutral Citation | [2019] EWHC 3326 (Admin) |
| Date | 04 December 2019 |
| Docket Number | Case No: CO/2161/2019 and CO/2163/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3326 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Steyn DBE
Case No: CO/2161/2019 and CO/2163/2019
Professional Standards Authority v NMC and Lembethe:
Peter Mant (instructed by Browne Jacobson LLP) for the Appellant
Christopher Scott (instructed by the Nursing and Midwifery Council) for the First Respondent
Michael Standing (instructed by Kingsley Napley LLP) for the Second Respondent
Professional Standards Authority v NMC and Mkhize:
Peter Mant (instructed by Browne Jacobson LLP) for the Appellant
Christopher Scott (instructed by the Nursing and Midwifery Council) for the First Respondent
The Second Respondent attended part of the hearing in person
Hearing date: 7 November 2019
Approved Judgment
A Introduction
The Professional Standards Authority for Health and Social Care (“the Authority”) brings a joined appeal against the decisions of a panel of the Fitness to Practise Committee of the Nursing and Midwifery Council (“the Panel”) concerning two registered nurses, Khanyisile Lembethe and Monica Zandile Mkhize (collectively referred to as the “Registrants”).
Ms Lembethe has worked as a nurse for 33 years. She worked at Fairlie House nursing home between 24 April 2006 and 14 August 2017. She began working there as a staff nurse and, following several promotions, by 2017 she was a deputy manager, holding the post of Quality, Clinical and Governance Manager. Ms Mkhize began working at Fairlie House, as a staff nurse, on 14 February 2017.
The Panel heard the Registrants' cases together on Monday 8 April to Thursday 11 April 2019. In short, it was alleged that Ms Lembethe dishonestly produced and signed a certificate of completion of in-house Basic Life Support (“BLS”) training and Ms Mkhize dishonestly sought to rely on that certificate by submitting it to an employment agency, Nursing 2000 (“the Agency”). The Panel found that the BLS certificate was not produced or submitted to the Agency in January 2017 (i.e. before Ms Mkhize had begun working for Fairlie House and undertaken the in-house training) and the Registrants had not acted dishonestly.
The Authority brings this appeal pursuant to s.29 of the National Health Service Reform and Health Care Professions Act 2002 (“the 2002 Act”) as it considers that the Panel's decisions that Ms Lembethe and Ms Mkhize were not dishonest, and the subsequent findings of impairment, were not “sufficient for the protection of the public”.
The Authority's grounds of appeal, which are identical in the two cases, are in these terms:
i) The Panel erred in refusing to admit in evidence an email sent by Ms Mkhize to the Agency in January 2017 attaching the BLS certificate.
ii) The Panel's finding that the Registrant was not dishonest in respect of the BLS certificate and/or that it could not be satisfied on the balance of probabilities that the Agency received the BLS certificate in January 2017 was wrong.
iii) The way in which the case against the Registrant was charged and/or prosecuted meant that important aspects of the Registrant's conduct were not considered adequately or at all.
(I have reversed the order in which grounds 1 and 2 appear in the application notices to reflect the order in which the grounds were argued at the hearing.)
I have had the benefit of written submissions and oral argument on behalf of the Authority and Ms Lembethe. The Nursing and Midwifery Council (“the NMC”) was also represented at the hearing but, having conceded the appeals, made no submissions. I am grateful to those representing both the Authority and Ms Lembethe for their excellent submissions, but I particularly wish to record my gratitude for the assistance of Mr Michael Standing of Counsel and Kingsley Napley LLP who have represented Ms Lembethe pro bono.
B Application to proceed in Ms Mkhize's absence
At the outset of the hearing Mr Mant applied, on behalf of the Authority, to proceed in the absence of Ms Mkhize. It was demonstrated that the Authority had properly served the application notice and other case papers on Ms Mkhize.
Although Ms Mkhize had not responded to the appeal, given the position she had taken before the Panel, the absence of a response was not an indication that she had not received the documents. The Panel hearing had been adjourned from December 2018 to April 2019 to enable Ms Mkhize to obtain representation. She had not been able to do so and Ms Mkhize was not represented at the hearing before the Panel. Ms Mkhize attended by telephone for the afternoon of the first day of the hearing before the Panel. She did not attend thereafter, in person or by telephone, or make submissions or submit evidence. Ms Mkhize informed a case officer by telephone and by email on the first day of the hearing that she was happy for the Panel to proceed without her and asked the Panel to excuse her absence.
There was no application by Ms Mkhize to adjourn the appeal to enable her to attend and doing so would have caused substantial prejudice to the other parties who were present and ready to proceed, as well as being a waste of court time and resources.
In the circumstances, I was satisfied that it was fair for the appeal hearing to proceed in Ms Mkhize's absence.
After the short adjournment, at 2pm, I was informed that Ms Mkhize had in fact been in court during the morning, although she was no longer present. Unfortunately, although there had been a brief adjournment (to sort out bundles) after I decided that the appeal hearing should proceed in her absence, Ms Mkhize only made her presence known at lunchtime, when she spoke to those representing the Authority. The Authority's representatives told Ms Mkhize that, if she wished to say anything in response to the appeal, she should return to court at 2pm. I indicated that, if Ms Mkhize returned to court, I would interpose any submissions she might wish to make. However, Ms Mkhize did not return to court before the end of the hearing. I remained satisfied that it was fair to continue and complete the hearing in Ms Mkhize's absence.
C The legal framework
The functions of the NMC and its committees are governed by the Nursing and Midwifery Order 2001 (“the 2001 Order”). Article 3(4) of the 2001 Order provides:
“The over-arching objective of the Council in exercising its functions is the protection of the public.”
Article 3(4A) of the 2001 Order states:
“The pursuit by the Council of its over-arching objective involves the pursuit of the following objectives –
(a) to protect, promote and maintain the health, safety and wellbeing of the public;
(b) to promote and maintain public confidence in the professions regulated under this Order; and
(c) to promote and maintain proper professional standards and conduct for members of those professions.”
In exercising its functions, the Fitness to Practise Committee is required to have regard to the over-arching objective: paragraph 18(10A) of Schedule 1 to the 2001 Order.
The Nursing and Midwifery Council (Fitness to Practise) Rules 2004 (“the 2004 Rules”) provide that the NMC is required to disclose documents relating to an allegation:
i) when the allegation is referred to the Case Examiners: rule 6A(2)(a);
ii) when it is referred to the Fitness to Practise Committee: rule 9(2)(a); and
iii) when notice of the hearing is served (rule 11(3)(b)).
Rule 31 of the 2004 Rules provides:
“Upon receiving the advice of the legal assessor, and subject only to the requirements of relevance and fairness, a Practice Committee considering an allegation may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil proceedings (in the appropriate Court in that part of the United Kingdom in which the hearing takes place).”
Rule 32(2) of the 2004 Rules provides:
“A Practice Committee considering an allegation may, of its own motion or upon the application of a party, adjourn the proceedings at any stage, provided that –
(a) no injustice is caused to the parties; and
(b) the decision is made after hearing representations from the parties (where present) and taking advice from the legal assessor.”
The decision of the Panel, in respect of each Registrant, not to take any disciplinary measure against her (as a consequence of the Panel's finding of no misconduct), was a “relevant decision” for the purposes of s.29(4) of the 2002 Act: see s.29(2)(b). Section 29(4) provides:
“Where a relevant decision is made, the Authority may refer the case to the relevant court if it considers that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.”
Section 29(4A) provides that consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient:
i) To protect the health, safety and well-being of the public;
ii) To maintain public confidence in the profession concerned; and
iii) To maintain proper professional standards and conduct for members of that profession.
Where a case is referred to the High Court, it is treated as an appeal: s.29(7) of the 2002 Act. In accordance with CPR 52.21(3) the appeal will be allowed if the decision of the Panel was:
i) Wrong; or
ii) Unjust because of a serious procedural or other irregularity in the proceedings before the Panel.
D The Charges
Ms Lembethe was charged as follows:
“That...
To continue reading
Request your trial