R (McNicholas) v Nursing and Midwifery Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMR JUSTICE STADLEN
Judgment Date20 February 2009
Neutral Citation[2009] EWHC 627 (Admin)
Docket NumberCO/8263/2008
Date20 February 2009

[2009] EWHC 627 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Mr Justice Stadlen

CO/8263/2008

Between:
The Queen on the Application of Michael Mcnicholas
Claimant
and
The Nursing And Midwifery Council
Defendant

Mr T Straker QC & Miss S Hannett (instructed by Lonsdales) appeared on behalf of the Claimant

Mr R Lawson (instructed by Ward Hadaway) appeared on behalf of the Defendant

MR JUSTICE STADLEN
1

: This is an application for judicial review.

2

The claimant is Michael McNicholas, the father of the late Sarah Jane McNicholas, who died on 31 July 1997 at the Halton Hospital which is part of the North Cheshire Hospital Trust. At the time of her death Miss McNicholas was 20 years of age.

3

The third to ninth interested parties are all registered nurses who at the relevant time were employed by or worked at the Halton Hospital. The first interested party, Michael McNicholas (Junior), is the claimant's son. Between 28 October 1997 and 6 April 2002 Mr McNicholas (Junior) made complaints to the defendant in relation to the conduct of the third to ninth interested parties.

4

The second interest party, Eleanor Marie McNicholas, is the wife of Mr McNicholas (Junior). She was the co-complainant with him in relation to those complaints made on 6 April 2002.

5

The claimant seeks to judicially review two decisions made by the defendant. First, the decision of the defendant dated on or about 25 June 2008, determining the composition of its Preliminary Proceedings Committee (which I shall refer to as the PPC) specifically the decision to include as the two professional members, Rosemary Luce and Bronya Webster. I refer to that as Decision One. Decision One was communicated to the complainant by way of an email dated 25 June 2008. Second, the decision of the PPC dated 27 June 2008 and communicated to the claimant in a letter dated 4 July 2008, to refer the claimant's complaints to the defendant's solicitor for further investigations. I refer to that as Decision Two.

6

By a claim form issued on 29 August 2008 the claimant sought judicial review of both decisions. On 12 November 2008 His Honour Judge Mackie QC, sitting as a Deputy Judge of the High Court, granted the claimant permission. The claimant advanced a single ground of challenge in relation to Decision One, namely that the defendant had erred in law by appointing two professional members to the PPC without having due regard to the professional field in which the interested parties worked contrary to rule 7(6) of the Nurses, Midwives and Health Visitors (Professional Conduct) Rules 1993 (“The 1993 Rules”).

7

In relation to Decision Two, the claimant alleged (i) that the decision was procedurally unfair in that no reasons were given by the PPC;

(ii) that the PPC failed to consider whether to refer the complaints to the Professional Conduct Committee which I shall refer to as t he PCC;

(iii) that the PPC failed to take account of the delay that has characterised the defendant's prosecution of these complaints; and

(iv) that the determination that further witness statement were required before the PPC could make a determination was perverse.

8

On 22 December 2008 the defendant filed and served detailed grounds of resistance. The defendant also served three witness statements from John Jones, a lay member of the PPC, dated 10 December 2008, from Bronya Webster, a professional member of the PPC dated 17 December 2008 and an unsigned witness statement from Ian Todd, the defendant's director of fitness to practise. The witness statements of Mr Jones and Mrs Webster purport to set out the PPC's reasons for making Decision Two.

9

In the light of these witness statements and the matters set out therein before me the claimant no longer pursued grounds 1 and 2 in relation to Decision Two, namely the failure to provide reasons and the failure to consider a reference to the PCC. The claimant, however, submitted that the reasons now disclosed in those witness statements demonstrated further errors of law. As a result, the nature of the challenge to Decision Two was amended and the claimant sought permission to seek judicial review of Decision Two on the following additional grounds: namely (i) that in determining that it required a solicitor's report before directing the Registrar to issue a Notice of Proceedings under rule 9(1) of the 1993 Rules, the PPC erred in law and/or unlawfully fettered its own discretion; and (ii) that in requesting a solicitor's report in order to deal with the facts and matters raised in the witness statement of Mrs Webster, the PPC erred in law in that it demonstrated a misunderstanding of the limited filtering role of the PPC. It demonstrated a misunderstanding of the question that it had to resolve and it made a material error of fact. The claimant continued to pursue grounds (iii) and (iv) as set out above. Thus before me there were four live grounds on which Decision Two was challenged.

Legal Framework

10

The defendant is a body corporate created by regulation 3 of the Nursing and Midwifery Order 2001 (SI 2002/253) (“The 2001 Order”). Part 5 of the 2001 order deals with fitness to practise, which includes misconduct. Its provisions came into force on various dates between 7 July 2003 and 1 August 2004. Pursuant to paragraph 16 of Schedule 2 to the 2001 Order, until the relevant rules under Part 5 come into force where disciplinary proceedings are pending before the defendant's statutory predecessor (The UK Central Council for Nursing Midwifery and Health Visiting) the matter shall be disposed of in accordance with the Nurses, Midwives and Health Visitors Act 1997 (“The 1997 Act”). For convenience I will refer in this judgment to the defendant as “the Council”.

11

The 1993 Rules were made under powers conferred by section 22(4) of the Nurses, Midwives and Health Visitors Act 1979 (“The 1979 Act”). Following the repeal of the 1979 Act, the 1993 Rules continued to have effect as if made under section 19(5) of the 1997 Act (see section 23(2), paragraph 2 of schedule 5).

12

Rule 1 of the 1993 Rules defines misconduct as “Conduct unworthy of a registered nurse…?” It defines the Registrar as “the person for the time being “appointed as Registrar and Chief Executive of the Council and includes any person duly authorised to act and acting on her behalf…”

13

“The solicitor” under rule 1 “means the solicitor appointed by the Council for any purpose under these rules.”

14

By rule 2(1) of the 1993 Rules a practitioner may be removed from the register where:

“(a) she has been guilty of misconduct; or.

(b) her fitness to practise is seriously impaired by reason of her physical or mental condition.”

Rule 2(2) provides:

“The means by which a practitioner may be removed from the register in the circumstances of paragraph (1)(a) are that, in accordance with Parts I and II of these rules, the question of misconduct has been investigated and referred to the Conduct Committee and, in accordance with Part II of these rules, misconduct has been proved to the Conduct Committee's satisfaction and the Conduct Committee has directed the removal.”

Rule 6 provides:

“The Council shall consider allegations of misconduct by practitioners referred to it with a view to proceedings for such practitioners to be removed from the register.”

15

The 1993 Rules provide for the constitution of a Preliminary Proceedings Committee. Rule 7(1) provides:

“A Preliminary Proceedings Committee shall be constituted by, and shall include members of, the Council, in order to—

(a) carry out investigation of cases of alleged misconduct;

(b) determine whether or not to refer a case of alleged misconduct to-

(i) the Conduct Committee with a view to removal of a practitioner from the register, or

(ii) the professional screeners, with a view to consideration of a practitioner's fitness to practise;

(c) determine whether a practitioner is guilty of misconduct and, if so, whether it is appropriate to issue a caution as to her future conduct.”

Rule 7(3) provides:

“The Council shall appoint 2 of its members to be deputy chairmen of the Preliminary Proceedings Committee and each may act as chairman of the Preliminary Proceedings Committee at the Vice-President's request or in her absence.”

Rule 7(4) provides that:

“If neither the Vice-President, nor any of the deputy chairmen is available, the members of the Preliminary Proceedings Committee present at the relevant meeting, shall select one of their number, who shall be a member of the Council, to act as chairman.”

Rule 7(5) provides:

“The Preliminary Proceedings Committee shall be quorate if at least 3 members of the Council constitute a majority of those considering a particular case.”

Rule 7(6) provides:

“The members of the Preliminary Proceedings Committee considering a particular case shall be selected with due regard to the professional field in which the practitioner under consideration works or has worked.”

It is rule 7(6) which is relevant in the context of Decision One.

16

Rule 7(7) provides:

“The Preliminary Proceedings Committee shall meet in private.”

Rule 7(8) provides:

“It shall not be necessary for the Preliminary Proceedings Committee when meeting to consider a particular case to be composed of the same members who considered that case on any previous occasion.”

Rule 8(1) of the 1993 Rules provides for the initial consideration of allegations of misconduct. Rule 8(1) provides:

“After an allegation of misconduct which the Council's officer considers may lead to removal from the register is received by the Council, the...

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