R Osammor v Nursing & Midwifery Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Blake |
| Judgment Date | 20 February 2014 |
| Neutral Citation | [2014] EWHC 4148 (Admin) |
| Docket Number | CO/15209/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 February 2014 |
[2014] EWHC 4148 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Blake
CO/15209/2013
The Appellant appeared in person assisted by Miss Trisan Hyatt, McKenzie Friend
Mr Timothy Hogman (instructed by Nursing & Midwifery Council) appeared on behalf of the Respondent
This is an appeal by Mrs Osammor from a decision of the Conduct and Competence Committee of the Nursing & Midwifery Council ("NMC") that was communicated in writing on 12 September 2013 following a hearing that had taken place between 2 and 10 September 2013. At the conclusion of the hearing, in the decision letter it was explained that a number of charges of misconduct had been found proved, that the factual findings amounted to misconduct within the contemplation of the Regulations and impairment was found. They went on to consider sanction and concluded that in all the circumstances, as they saw them, in total, the conduct was so serious that the only appropriate sanction was striking off the Register.
In essence, this appeal is based on the contention that that sanction was too severe and in reaching that conclusion the committee failed to take account of a proportionate sanction having regard to certain factors relied upon by the appellant as mitigating and cumulatively justifying a departure from the presumption in the Indicative Sanctions Guidance that conduct of this sort would normally expect to lead to striking off. The reason why, on the facts found by the panel, striking off would normally be considered the only sanction sufficient to protect the public interest is because the allegations were of a course of conduct of dishonesty. It is therefore necessary to explain in some summary terms what that course of conduct was.
In the autumn of 2008 the appellant was employed as a midwife at Homerton Hospital, East London. After some investigation into a clinical problem over a child who died, a decision was taken that the appellant should be placed on a period of supervision or supervised practice with respect to four particular areas. There was a meeting on 31 October 2008 attended by the Acting Head of Midwifery, the Delivery Suite Manager, the Supervisor of Midwives and the appellant. A minute of the meeting that the appellant relied upon said that supervised practice would commence on 5 January 2009 and, elsewhere, that the appellant was told —
"During your supervised practice you cannot work anywhere else until the supervised practice is completed."
The details of what supervised practice involved was also in a letter sent to the appellant's address by recorded delivery, for which she signed. But she says she did not in fact read it because she was about to go away, and when she returned the letter had gone missing. She believed someone had taken it.
The fact of the matter is that the appellant did accept (this formed charge 1 of the disciplinary proceedings) that she undertook agency work from the following day 1 November 2008 right through to 11 December 2008. It seems it was only on that day that the agency that was providing the appellant with work became aware of the supervised practice direction and its implications, because the agency work — of which I think there are twenty-two instances set out in the schedule — was all at hospitals outside Homerton Hospital and necessarily therefore not supervised. When this came to light the appellant was dismissed from her employment by Homerton Hospital, and also an NMC investigation into these matters was commenced in 2009.
It is sufficient to note at this stage that the appellant's account of what she thought were the limits to her ability to take work was not accepted by the panel because they heard direct evidence from the participants at the meeting to the effect that the appellant had been left in no doubt that she was not to undertake any work forthwith which was unsupervised, as opposed to no work, from 5 January which is when the supervision started. To that extent the minutes were accepted not to be entirely full and the ambiguity as to what the word "during" meant was clarified, according to the panel's finding, by live witnesses present.
The other charges concern what then happened with the appellant's subsequent career as a midwife. Essentially, she went to work at Lewisham Hospital. Lewisham Hospital was made aware that she was subject to supervised practice and a supervisor was appointed. At some stage, possibly at the end of 2009 or early 2010, that supervision had come to an end and Lewisham regarded the appellant as a competent and useful midwife and suggested that she might want to apply for permanent employment with them. She did so.
What then happened was that she filled out a form (and I think it is more than one) where the specific question was asked whether she was subject to ongoing proceedings before the NMC and she gave the answer no. It is also the case that one of the charges made against her was that during the job interview which resulted in this application she had not mentioned that there were these proceedings. That charge was not found proven because the panel accepted that she had mentioned in general terms that she had a small problem that was pending. The appellant also suggested that her supervisor must have known that the fact she was subject to supervised practice would suggest some explanation for a problem with the NMC.
Thereafter the panel found proved that she had misled members of staff who were responsible for her supervision and employment as to the nature of the small problem, and in particular suggesting it was only to do with the need for supervision rather than the charge pending which had not yet been determined was a count of dishonesty, in misrepresenting, by conduct with the agency back in 2008, that she was entitled to undertake agency employment when she was subject to supervised practice. There were at least two occasions which the panel found proven where she had told people with responsibility at Lewisham that it was a small matter, only concerned with the supervision practice rather than the allegation of dishonesty.
The proceedings did take some time to come to fruition in 2013. That is because the investigation that began in 2009 about the matters arising in the autumn of 2008 became merged in the early part of 2012 with the new allegations that she had misled her responsible management at Lewisham Hospital as to her disciplinary status and nature pending unresolved disciplinary proceedings.
At a hearing originally designed to deal with all the matters in February 2012 new charges were put. They were adjourned to enable the appellant to have time to deal with them. In due course the new charges had to go through a certain sifting procedure. The matter was dealt with in September 2013. For the panel, the way that the appellant sought to explain and minimise her conduct both in 2008 and in 2010 became relevant to the question of sanction. In particular, she said that her supervisor had advised her that she could put "no" when filling in the form asking the question, with a view to employment, as to whether there were any problems with her previous employment and whether she was subject to disciplinary proceedings. The supervisor disputed that that advice had been given. The panel accepted the supervisor's evidence and rejected that of the appellant.
Moreover, another person who knew of the appellant's performance as a midwife in Lewisham was called on her behalf as a character witness. When giving live evidence before the panel this witness confirmed that she had not been made aware of the extent of the NMC proceedings and in particular that an allegation of dishonesty was being made. That left the appellant's advocate — who, we understand, was a registered nurse with some experience of the proceedings — to seek to abandon the character witness and submit that that witness being called on her behalf was "economical with the truth".
With that brief summary of the factual background, I will refer to the panel's decision on sanction:
"The panel considered this case very carefully and decided to make a striking off order. The effect of this order is that your name will be removed from the NMC register and you will not be able work as a nurse or a midwife or apply for restoration until 5 years after the date that this order takes effect.
In reaching this decision the panel has had regard to all the evidence that has been adduced in this case. The panel took account of the submissions made by Mr Zeiltin and those made by Mr Akinoshun and accepted the advice of the legal assessor. The panel bore in mind that any sanction imposed must be reasonable, appropriate and proportionate, and although not intended to be punitive in its effect, it may have such consequences. The panel had careful regard to the Indicative Sanctions Guidance published by the NMC. It recognised that the decision on sanction is a matter for the panel exercising its own independent judgement.
The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of the case, the nature of the misconduct and the repeated dishonesty over a prolonged period of time. Further the panel considered that it would not be in the public interest to impose no sanction in this case.
Next, in considering whether a caution order would be appropriate in the...
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