R (Ogbonna) v Nursing & Midwifery Council

Lord Justice Rimer

This appeal is a second appeal by the Nursing and Midwifery Council (“the NMC”). It is against an order of Nicola Davies J, dated 18 February 2010, made in the Administrative Court and allowing the appeal of the respondent, Eunice Ogbonna, a registered midwife, against a decision of the NMC's Conduct and Competence Committee (“the CCC”) striking Mrs Ogbonna off the Register of Midwives. The decision of the CCC was made on 24 June 2009, being the last day of a three-day disciplinary proceeding against Mrs Ogbonna brought by the NMC. The decision was thereafter formally confirmed in a letter of 25 June 2009 that the CCC sent to Mrs Ogbonna, repeating the reasons for its decision.

At the time relevant to the charges against her, Mrs Ogbonna was employed as an F Grade midwife by Homerton University Trust Hospital plc. There were three charges. Charge 1 raised allegations falling under four heads about events on 25 April 2005, when Mrs Ogbonna is said to have unjustifiably left the delivery suite. Charge 2 related to alleged misconduct on 26 April 2005 and raised seven heads of criticism in relation to the delivery of the baby of Patient A. Charge 3 alleged misconduct on the same day under three heads, relating to the alleged failure of Mrs Ogbonna in relation to the handing over of Patient A's care to another midwife.

The evidence against Mrs Ogbonna under Charge 1 was centrally dependent upon the evidence of Betty Pilgrim, the team leader. That evidence was adduced before the CCC in the shape of a written statement from Ms Pilgrim, in the face of objection by Mrs Ogbonna asserting that it was unfair for it to be admitted since she had no opportunity to cross-examine Ms Pilgrim. The CCC nevertheless admitted the statement and found Charge 1 proved. They also found Charges 2 and 3 proved. Ms Pilgrim's evidence was not relevant to Charge 2; and, although it was relevant to one limb of Charge 3, the CCC does not on the face of its reasons appear to have placed reliance upon it in arriving at its finding that Charge 3 was proved.

The judge on the appeal concluded that the admission of Ms Pilgrim's evidence under Charge 1 was unfair and that the CCC's decision on that charge was in consequence unsustainable. She further held that the CCC had plainly taken account of its Charge 1 finding, as well as its Charge 2 and 3 findings, in further finding, as it did, that Mrs Ogbonna was guilty of misconduct and that her fitness to practise was impaired. The judge held that the CCC's error in relation to Charge 1 tainted its findings of misconduct and impairment and therefore its overall decision to strike Mrs Ogbonna off the register. She accordingly allowed the appeal. There was some suggestion in the papers that she might have intended to remit the matter to the CCC (either to the same or a different panel) to reconsider the charges against Mrs Ogbonna, but I can detect nothing in her judgment or order suggesting that that was her intention. The sense of the order, as I understand counsel to agree, appears to me simply to be to the effect that the CCC's decision was quashed.

The NMC sought permission for a second appeal against: (a) the judge's decision as to the fairness of the admission by the CCC of the hearsay evidence of Ms Pilgrim in relation to Charge 1; and (b) her failure to consider whether the proven Charges 2 and 3 could themselves support the findings of misconduct and impairment that the CCC had made and the striking-off sanction that it imposed. Sir Richard Buxton, on the papers on 25 March 2010, refused permission for a second appeal on ground (a) but granted permission on ground (b).

On 29 July 2010, well out of time, the NMC informed the court that it wished to renew its application for permission in respect of ground (a). Its point was that it was a regulatory body, with a statutory duty to protect the public, and it had become apparent to it that Nicola Davies J's judgment was being treated, or deployed, as laying down a general principle as to the requirements of fairness in the present context which the NMC regarded as conveying the wrong message. It therefore sought permission to renew out of time its application for permission under ground (a), and that application has been argued before us as well as the NMC's appeal under ground (b).

Mrs Ogbonna appeared in person before the CCC, assisted by Pamela Okenwas, who I presume was there in the capacity of a McKenzie friend. The NMC's case was presented by Ms Joanna Dirmikis, a barrister in the employment of the NMC. Mrs Ogbonna again appeared in person on her appeal before Nicola Davies J and Ms Clare Strickland, a barrister also employed by the NMC, represented the NMC, as she does before us today. Mrs Ogbonna now also has the benefit of counsel, Mr Lee Gledhill.

The Legal Structure.

The NMC was established by the Nursing and Midwifery Order 2001, whose principal function is, by regulation 3(2), to establish from time to time standards of education, training, conduct and performance for nurses and midwives and to ensure the maintenance of those standards. Regulation 3(4) provides that the main objective of the NMC in exercising its functions is to safeguard the health and well-being of persons using or needing the services of registrants. Regulation 3(5) provides that in exercising its functions the NMC shall have proper regard to the interests of all registrants and prospective registrants and, in short, of those using or needing the services of registrants in the United Kingdom. Regulation 3(9) provides for the establishment of four NMC committees, of which one is the CCC, and each of which has the functions conferred on it by the 2001 order.

The CCC is the disciplinary body charged with hearing complaints against registrants including (as in this case) allegations that a registrant's fitness to practise is impaired. Relevant to a consideration of such issues is the NMC Code of Professional Conduct, which sets standards to be adhered to by registrants as to their professional conduct, performance and ethics. The NMC gave notice to Mrs Ogbonna on 13 March 2006 that Homerton had alleged that her fitness to practise was impaired.

The CCC's proceedings were and are governed by the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 ( SI 2004/1761), in particular Parts 4, 5 and 6. There is no need for present purposes to refer to those rules, apart only from rule 31, headed “Evidence”, which is at the centre of the finding of unfairness the judge made in relation to the hearing of Charge 1. The only material sub-paragraph is rule 31(1), which 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)”

Charge 1

Charge 1 levelled allegations against Mrs Ogbonna as follows:

“On 25 April 2005 [you] left the Delivery Suite in order to watch a training DVD when you:

(a) Were involved in providing care to a client at the time of the training;

(b) Knew or ought to have known that the delivery suite was busy;

(c) Ignored the direction of Betty Ann Pilgrim, Team Leader, who told you not to leave the suite as the ward was busy;

(d) Replied to Betty Ann Pilgrim words to the effect that you did not care if the ward was busy, you were still going to go.”

Ms Pilgrim's evidence was crucial for making good that charge since, as the CCC observed in its reasons for its decision to admit her hearsay statement, she was the only witness to certain of the Charge 1 allegations. She made a witness statement relating to them on 29 April 2008, which was some three years after the events of 25 April 2005, and dealt with the events of that day in paragraph 7. She did, however, attach to it a report of those events that she had sent to Agneta Bridges, Head of Midwifery at Homerton, on 23 May 2005 in which she covered the events of 25 April 2005 in four paragraphs.

On 6 February 2009 Ms Dirmikis wrote to Mrs Ogbonna on behalf of the NMC about the forthcoming disciplinary hearing, which was at that stage due to be heard on 18 February 2009, explaining in paragraph (d) that the NMC would seek to rely on Ms Pilgrim's 2008 statement in her absence by reading it out. The reason for this was said to be that:

“… all reasonable efforts are being made to contact her and we have been told by her aunt that she resides in the Caribbean so would be unable to attend the hearing. However, you can (i) seek to argue that the statement should not be admitted or (ii) if it is admitted, seek to argue that it should not [sic: the “not” was a mistake] be given less weight than the other evidence in the trial because she is not subject to cross-examination.”

Mrs Ogbonna replied to that letter on 10 February...