R (Aston) v Nursing & Midwifery Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MOSES |
| Judgment Date | 21 July 2004 |
| Neutral Citation | [2004] EWHC 2368 (Admin) |
| Docket Number | CO/3728/2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 July 2004 |
[2004] EWHC 2368 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Moses
CO/3728/2003
MR L GLEDHILL (instructed by Gisby Harrison) appeared on behalf of the CLAIMANT
MR R LAWSON (instructed by Ward Hardaway) appeared on behalf of the DEFENDANT
This is an appeal brought under Section 12 of the Nurses, Midwives and Health Visitors Act 1997 against the Nursing and Midwifery Council's Professional Conduct Committee.
The appellant's appeal is against a decision of the Professional Conduct Committee made on 7th May 2003. It was made at the conclusion of a hearing conducted over four days, firstly on 24th and 25th February and secondly on 6th and 7th May 2003.
The decision was that the appellant, who is a registered general nurse, should have his name removed from the Register of Nurses. The appeal, by virtue of Section 12, falls under part 52, rule 11, of the Civil Procedure Rules 1998. By sub-rule 3 of rule 11:
"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."
The appeal was advanced on two distinct but related grounds. Firstly, that the conduct of the case presented on behalf of the appellant by a non-qualified advocate, named in these proceedings as Ms O, appointed by the Royal College of Nurses, was so incompetent and so inadequate as to amount to a serious irregularity and that that irregularity affected the safety of the conclusion of the Professional Conduct Committee.
Secondly, that the committee failed to give sufficient reasons with the result that the appellant is in no position to know whether inadmissible evidence might have affected its conclusion.
Approach
Before me it was not contended that the mere fact of the incompetence of the advocate would be sufficient to entitle this court to allow the appeal and order the rehearing which was requested by this appellant.
Both the appellant and the respondent agree that in the instant case the approach of this court should be that which is applied by the Court of Appeal Criminal Division when complaints are made as to the incompetence of the representation.
The approach of that court is exemplified in two decisions. R v Bolivar [2003] EWCA Crim 1167 and R v Day [2003] EWCA Crim 1060. In R v Bolivar the Vice President at paragraph 52 stated the test as Wednesbury unreasonableness and such as to affect the fairness of the trial.
In R v Day, the test was posed in the following way:
"(Incompetent representation) cannot in itself form a ground of appeal or a reason why a conviction should be found to be unsafe. We accept that, following the decision of this court in Thakrar [2001] EWCA Crim 1906, the test is indeed the single test of safety, and that the court no longer has to concern itself with intermediate questions such as whether the advocacy had been flagrantly incompetent. But in order to establish lack of safety in an incompetence case, the appellant has to go beyond the incompetence and show that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered process unfair or unsafe."
In the context of part 52, rule 11, the test is not safety. The appellant need not show that the decision was wrong, but he must show that the decision was unjust. The decision will only be unjust if the incompetence led to irregularities which rendered the process of the trial unfair or the conclusion unsafe.
However, in the case before me both sides agree that the court should not allow the appeal unless the incompetence was of such a degree as to be described as Wednesbury unreasonable. That concept is not easily applied to the question of the incompetence of an advocate, but I take the Vice President's reference to Wednesbury unreasonable to mean that the conduct of the advocate must be such that he or she took such decisions and acted a way in which no reasonable advocate might reasonably have been expected to act.
But that by itself, as I have said, is not enough. It must further be shown that that wholly inadequate conduct did affect the fairness of the process. Only then could the conclusion of the committee be shown to be unjust.
The facts
The case against the appellant consisted originally of five charges. Charge 3 was dismissed at the close of the Council's case. In the first charge, it was alleged that the appellant had acted inappropriately towards patient A in that he (i) on an unknown date around January to February 2000, placed a stick between her legs while she was on a commode, (ii) on Friday 3rd November 2000, placed a stick between her legs while she was on a commode and (iii), on Saturday 4th November 2000 placed a stick between her legs while she was on a commode.
The evidence against this appellant depended on two care assistants, a Mrs Newton and a Mrs Robinson. Further, it depended upon the evidence of the Operations Manager, a Laura Morton. She described the condition of patient A. Patient A could not lift her legs, but it was no part of the care plan for a stick to be used in any way and she said in terms that there was no need for this appellant to use a stick at all.
The appellant denied the use of the physical application of the stick. He said he had merely used it to indicate the width the patient had to hold her legs apart when urinating. He did accept that on one occasion, the third, the stick may have come accidentally into contact with the ankles of patient A and left some physical signs. But, he said, that was only an accident.
Charge 2 alleged that on 4th November 2000 the appellant had deliberately swung patient A in a hoist whilst placing her on a bed. This was alleged to have taken place shortly after the third stick incident. The evidence against him rested on the evidence of Mrs Newton.
The appellant denied that he had deliberately swung patient A in a hoist. He said that as he turned, the hoist frame around the arm of the commode chair brushed against the bottom of the resident in the area of her backside. He said that this caused a slight movement as the hoist was moved on the carpet. He said he stood behind the hoist, holding the handle, trying to move it, and that patient A had a startled look on her face and moved slightly about the single pivot on the hoist so that he stopped immediately to move it.
The fourth charge alleged that he had acted, on a day unknown, inappropriately towards patient C in that he had shouted at him using words similar to, "Right, see, you can make your own bed", and had thrown the patient's clothing out of the wardrobe onto the bed. The evidence in relation to that depended upon the care assistant, Mrs Newton. The appellant denied that that incident had happened.
The fifth charge alleged that on an unknown date in about October 2000 he had acted inappropriately towards another patient, patient D, in roughly cleansing her mouth and then nipping her nose, causing her to grasp for breath. Whilst his case was that there might have been occasions when it was necessary to move the mucus from her mouth, she having difficulty with that problem, he denied that any incident in which she was hurt or her nose was nipped had taken place.
It can be seen, therefore, that the case depended upon the credibility of the care assistants on the one hand and the credibility of the appellant on the other. The burden of proof was the criminal burden resting upon the Council throughout and the standard of proof was the criminal standard, namely the committee had to be satisfied so as to be sure of the appellant's guilt before they could find the facts proved.
Once the facts were found to be proved, the second stage was then reached when the committee had to decide whether those facts amounted to misconduct. Those facts having been found to be proved, there was really no issue but that that was misconduct.
The final stage was the appropriate disposal of the case, having regard to the conclusion that the appellant had been guilty of misconduct in those ways and, as I have said, the conclusion was that he should be removed from the register.
The conduct of the advocate
The advocate retained by this appellant was obtained through the offices of the Royal College of Nursing. She was not legally qualified. A very large number of allegations have been made against her. Some of those allegations are less grave than others, but it is contended that cumulatively they show a level of incompetence far below that of anyone designated to represent someone in so grave a matter as a hearing as to misconduct which might, and in this case did, result in a nurse being removed from the register.
I shall not detail all the allegations made, indeed not all of them were pursued, but I shall concentrate on some of the most glaring examples. There was before the court a statement from the appellant; its status was not wholly clear to me, but there was no objection to my reading it. It detailed the poor communication between that representative and the appellant before the hearing started.
That poor communication does not go to the irregularity of the proceedings, save perhaps to explain the conduct of the representative, Ms O, during the hearing. But undoubtedly, that poor communication fuelled the lack of faith the appellant had in his advocate.
There...
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