R Ellen Mafico v Nursing and Midwifery Council

JurisdictionEngland & Wales
JudgeHis Honour Judge Gore
Judgment Date21 January 2014
Neutral Citation[2014] EWHC 363 (Admin)
Date21 January 2014
Docket NumberCO/14830/2013
CourtQueen's Bench Division (Administrative Court)

[2014] EWHC 363 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Manchester Civil Justice Centre

1 Bridge Street West

Manchester

Greater Manchester

M60 9DJ

Before:

His Honour Judge Gore QC

(Sitting as a Judge of the High Court)

CO/14830/2013

Between:
The Queen on the Application of Ellen Mafico
Claimant
and
Nursing and Midwifery Council
Defendant

Mr Dickason appeared on behalf of the Claimant

Mr Amesbury appeared on behalf of the Defendant

His Honour Judge Gore
1

This is a statutory appeal, brought by the appellant against the decision of the respondent's Conduct and Competence Committee, to find her fitness to practise was impaired and to impose the sanction of striking off from the register. The appeal is brought under Article 38 of the Nursing and Midwifery Order 2001.

2

The appellant nurse qualified in 2009. At the time relevant to this appeal she had an unblemished clinical and conduct record. On 26th May 2010 sadly her father passed away unexpectedly in Zimbabwe. Since that time, and in particular throughout 2011, the appellant's mental health deteriorated and fluctuated, as described in the psychiatric report of Dr Ghosh, dated 1st August 2012, the contents of which have never been disputed in this case and have always been taken into account.

3

On 6th February 2011 the appellant began employment as a full-time Band 5 nurse on ward 12 of Singleton Hospital. Her first 6 months there were not entirely harmonious, which is the way in which it is described in Mr Dickason's skeleton argument, he appearing for the appellant today, and that, he says can be seen from the file note dated 7th November 2011.

4

On 6th August 2011 in fact her mental health had deteriorated to such a degree that sadly she attempted suicide by an overdose of quinine sulphate tablets which she had purchased online. From 7th August 2011 to 29th September 2011, in those circumstances, hardly surprisingly, the appellant took sickness absence from work. On 7th November 2011 she had a performance management meeting with her line manager, in the course of which she became distressed and upset. Following that meeting the case is that she stole Tramadol tablets from the ward. She ingested what is asserted to have been an unknown quantity and was sick some time later.

5

On 18th November 2011 ward managers identified that quantities of medication were missing from the supply. Police were called and attended on 22nd November 2011 and the nursing staff, including the appellant, voluntarily submitted to a search. Three packs containing 28 Tramadol tablets were found in the appellant's pocket. The appellant was arrested and taken to Swansea central police station. At 2.34 in the morning on 23rd November 2011 she was interviewed in the presence of the duty solicitor. She admitted the theft of Amitriptyline and Tramadol tablets from the ward but could not confirm the quantities or the dates. She denied the theft of the Tramadol found in her pocket the preceding day, on the basis that it had been intended to be given to patients in the course of the same shift.

6

The appellant accepted a caution in respect of the unspecified quantities of Amitriptyline and Tramadol that she admitted she had taken previously, that caution being for conduct contrary to sections 1(1) and (7) of the Theft Act 1968. The appellant, I should emphasise, was not cautioned in respect of the Tramadol found in her pocket on the 22nd November 2011. It is right to say, as was submitted by Mr Dickason, on behalf of the appellant, that the reference to "these drugs" on 22nd November 2011, at page 3 in the second full paragraph of the Decision Letter of the Council is therefore erroneous but there is no dispute that that error did not appear to form any part of the decision making of the Committee in this case.

7

At all events, as a result of these events the appellant received a final written warning and she was transferred from ward 12 to the Tempest Burns Intensive Therapy Unit.

8

Her conduct was referred to the Nursing and Midwifery Council on 28th November 2011. On 5th January 2012 an 18 month interim conditions order was imposed. This was subsequently reviewed and extended by the High Court on application dated 24th June 2013. The single charge at all times was in the following terms that the appellant:

"…whilst a registered nurse employed by Bro Morgannwg University Health Board NHS Wales at Singleton Hospital:

1. Received a caution from South Wales Police on 23 November 2011 for theft by employee.

AND in light of the above your fitness to practise is impaired by reason of your caution."

9

The allegation was admitted and the appellant gave evidence at the impairment and sanction stages of the Committee's deliberations. She was in fact the only live witness. The hearing took place over two days, on 9th August 2013 and 5th September 2013. The decisions appealed against were notified to her by letter dated 10th September 2013, and this appeal is made under Article 38 of the Nursing and Midwifery Order 2001.

10

There are two grounds of appeal. First, in so far as the finding of fact was made that the appellant's fitness to practise was impaired by reason of the caution she had received, the Panel found, and the appellant appeals against the finding, that she took stolen Tramadol on multiple occasions and that her protest that she did so on only one occasion was therefore dishonest. Mr Dickason, who appears for the appellant, submits that the Committee rejected the appellant's explanation without satisfactorily engaging with it, despite the seriousness of the findings as to the appellant's truthfulness which it made as a result and without condescending to give adequate reasons or analysis for the decision that it came to.

11

The second ground of appeal relates to the advice to the Committee at the sanction stage of the process. It is submitted that the legal advice erred when commending the application of the decision in Solicitors Regulatory Authority v Sharma [2010] EWHC 2022, which gave the Committee the erroneous impression that striking off would be appropriate in all cases of dishonesty absent exceptional circumstances, which it is submitted was an erroneous direction for the legal adviser to have given to the decision-making Committee.

12

Article 38 of the order so far as is relevant provides:

"38.(1) An appeal from—

(a) any order or decision of the Health Committee or the Conduct and Competence Committee other than an interim order made under article 31, shall lie to the appropriate court.

(3) The court may.

(a) dismiss the appeal;

(b) allow the appeal and quash the decision appealed against;

(c) substitute for the decision appealed against any other decision the Practice Committee concerned or the Council, as the case may be, could have made; or

(d) remit the case to the Practice Committee concerned or Council, as the case may be, to be disposed of in accordance with the directions of the court or sheriff.

and may make such order as costs … as it, or he, as the case may be, thinks fit."

"he" is a reference to the fact that in the Scottish jurisdiction the decision maker is a different court.

13

There is no dispute that the appeal is conducted under and regulated by Civil Procedure Rules Part 52 which provides at 52.11:

"1) Every appeal will be limited to a review of the decision of the lower court unless –

(a) a practice direction makes different provision for a particular category of appeal; or

(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

(2) Unless it orders otherwise, the appeal court will not receive –

(a) oral evidence; or

(b) evidence which was not before the lower court.

(3) 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.

(4) The appeal court may draw any inference of fact which it considers justified on the evidence.

(5) At the hearing of the appeal a party may not rely on a matter not contained in his appeal notice unless the appeal court gives permission."

14

The basis on which the appellant appeals in this case is that the decision of the Committee was wrong within the meaning of Part 52.11(3)(a), not that it was unjust because of any serious procedural or other irregularity under 52.11(3)(b) no such procedural or other irregularity being alleged in this case.

15

As regards the first ground, in my judgment the decision of the Administrative Court of Langstaff J in Bhatt v General Medical Council [2011] EWHC 2783 contains the best distillation of the principles to be applied in an appeal of this nature. Langstaff J said this:

"The Court's Approach.

An appeal under s.40 of the 1983 Act is by way of rehearing ( CPR Part 52, PD 22.3). This court will allow an appeal where the decision of the lower tribunal was wrong or unjust because of a serious procedural or other irregularity in the proceedings before the lower tribunal ( CPR Part 52.11).

In Dr. Bhupinder Sacha v General Medical Council [2009] EWHC 302 (Admin) Lloyd-Jones J. reflected at paragraph 8 on what this implied:

'In considering these matters, I bear in mind, and I give appropriate weight to, the fact that the Panel is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect, and that it has had the advantage in this case of hearing the evidence from live witnesses. (See the observations of Auld LJ in Meadow v General...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT