R Sarah Johnson and Another v The Professional Conduct Committee of the Nursing and Midwifery Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BEATSON |
| Judgment Date | 06 March 2008 |
| Neutral Citation | [2008] EWHC 885 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/6950/2007 |
| Date | 06 March 2008 |
[2008] EWHC 885 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Beatson
CO/6950/2007
Miss M O'Rourke (instructed by Radcliffes le Brasseur, SW1P 3SJ) appeared on behalf of the Claimant
Mr R Lawton (instructed by Ward Hadaway, Newcastle-upon-Tyne, NE1 3DX) appeared on behalf of the Defendant, the Professional Conduct Committee
Mr J Russell (instructed by the Ward Hadaway, Newcastle-upon-Tyne, NE1 3DX) appeared on behalf of the Defendant, the Nursing and Midwifery Council
Introduction
This matter comes before me as a rolled-up hearing for permission with immediate determination of the substantive claim if permission is granted. It is an application for permission in respect of the decision of the defendant, the Professional Conduct Committee of the Nursing and Midwifery Council, on 8 August 2007, in respect of objections made by the two claimants to a number of the charges. The objections were made pursuant to rule 15(3) of the Nurses, Midwives and Health Visitors (Professional Conduct) Rules 1993 SI 1993 No. 893. The defendant refused to stay the heads of charge which were the subject of the rule 15(3) applications.
The charges related to the periods when the claimants were respectively the manager and the matron of Lynde House Nursing Home in Twickenham. The charges in respect of Sarah Johnson, the first claimant, are for the period between 15 April 1996 and 31 January 2002. Those in respect of the second claimant, Lynette Maggs, are for the period between 19 October 1998 and 31 January 2002. In fact, Ms Maggs in her statement states that she left employment in the nursing home in April 2002.
The charges laid against the first claimant are set out on pages 64 to 71 of bundle D, and those laid against the second claimant are set out on pages 72 to 79. It is not necessary to set these out in full. It suffices, for the purposes of this judgment, to give two examples relating to the allegations against the first claimant. The charges start by stating:
“That you, between 15 April 1996 and 31 January 2002, whilst employed as Manager of Lynde House Nursing Home, Twickenham…”
and then allegation 2a is:
“Failed to ensure that adequate nursing records were maintained in respect of
…
ii. Resident J
A. in that despite continuing concerns regarding weight loss between 7 February 2000 and 27 January 2001, you failed to ensure daily records were kept of food or fluid intake;
B. in that no care plan was kept for catheter management following catheterisation on 16 November 2000 until 24 December 2000.
C.in that no risk assessment or care plan in relation to falls was kept during the period 12 May 1999 to 24 January 2002.”
There are similar, but not identical, particulars in respect of six other residents. Allegation 4a is:
“Failed to ensure that an effective nurse call system was in place, namely:
i. that each resident had a nurse call bell in reach at all times, more particularly:”
There then follows a list of seven residents identified by letters and they are listed with periods ranging from three months to two years:
(ii) that nurse call bells were promptly answered…”
That sub-heading is particularised by giving 15 sub-heads relating to different residents. It suffices to set out two of these to give the flavour of the charge:
“A. on various dates unknown between 16 August 2000 and May 2001 when the daughter of Resident I visited the home;”
and then:
“D. on various and unknown dates between October 1998 and January 2002 when Dr Charmian Goldwyn visited patients;”
Allegation 5a is concerned with failure to ensure that sufficient serviceable moving and handling equipment was available on various and unknown dates between October 1998 and 31 January 2002. It goes on to state that:
“more particularly:
i. failed to ensure that night staff charged the batteries of hoists overnight;
i. failed to ensure that night staff charged the battery of Resident Q's wheelchair overnight;
ii. failed to ensure that there were sufficient Zimmer frames on occasions when the son of Resident R visited his mother;
iii. failed to ensure that wheelchairs were serviceable in that footrests were missing.”
Charge 6a concerned failure to ensure the fluid and dietary intake of dependant residents was maintained, and then gave eight examples all on “various and unknown dates” between two given dates. Allegation 7a was of failure to ensure a safe system for the administration of medicines, more particularly, in failing to ensure that medication was consumed by residents after it was dispensed. Again examples are given concerning particular residents on “various and unknown dates” between a particular period.
The application for permission and the challenge to the decision of the Professional Conduct Committee (hereafter “the PCC”) has three limbs. The first is that the charges were insufficiently particularised and that the Professional Conduct Committee erred in law, or was irrational, or perverse, in finding that they were. The second is that the PCC erred in law and/or was irrational in ruling that those within the Nursing and Midwifery Council (hereafter “the NMC”) responsible for bringing the complaints made against the claimants, in this case before the PCC, were not under a duty to gather evidence in favour of the claimants, as well as against them.
The third limb of Miss O'Rourke's challenge is that there was apparent bias by the PCC in favour of the prosecution, and an undue willingness to overlook defaults in the Nursing and Midwifery Council as prosecutor, in respect of late disclosure and non-disclosure of correspondence about the investigation. The PCC accepted the arguments of Mr Russell, on behalf of the NMC, that they could not further particularise the allegations and were not under a duty to gather evidence without scrutinising them. Miss O'Rourke submitted this was of particular concern since the PCC and those prosecuting the claimant were part of a single entity: the NMC. She relied on the concerns expressed by the Court of Session in Tehrani v UKCC [2001] IRLR 208.
The hearing before the PCC commenced on 30 July 2007. The PCC heard submissions on the first two matters subject to this application. It also heard submissions on other matters, including amendments to the charges and non-disclosure. The submissions were heard over several days. The PCC deliberated for two days, during which time, at Miss O'Rourke's invitation, they read through the transcript of proceedings. On 8 August they refused to stay the proceedings, but adjourned them to enable an urgent application for judicial review to be made. This was done on 10 August. On 14 August Collins J directed a stay of the hearing pending consideration of the application for permission, and, if permission was granted, determination of the substantive claim.
The Legislative Framework
The relevant statute is the 1997 consolidation of the legislation concerning nurses, midwives and health visitors. I do not need to set out any of its provisions. The 1993 rules, to which I have referred, were made under one of its predecessor statute: the Nurses Midwives and Health Visitors Act 1979. Rule 2(1) provides that a practitioner may be removed from the register where she has been guilty of misconduct, or her fitness to practise is seriously impaired by reason of her physical or mental condition. These charges relate to misconduct. Rule 2(2) provides:
“The means by which a practitioner may be removed from the register in the circumstances of paragraph (1)(a) [that is misconduct] 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 7(1) makes provision for a Preliminary Proceedings Committee to carry out investigation of alleged misconduct and to determine whether or not to refer alleged misconduct to the Conduct Committee, or to professional screeners. Provision is also made for a Preliminary Proceedings Committee to determine that a practitioner is guilty of misconduct with a view to issuing a caution as to future conduct.
Rule 8(2) of the Rules deals with the initial investigation by the NMC Council. It provides that after an allegation of misconduct is received by it, which the Council's officer considers may lead to removal, the registrar shall send the practitioner concerned a summary of the allegations, a notice that the Preliminary Proceedings Committee will in due course consider the matter, and a confirmation that if a notice of proceedings is issued by the Preliminary Proceedings Committee the practitioner will be invited to respond in writing. If the practitioner wishes to submit a preliminary response to the summary, such response will be made available to the Preliminary Proceedings Committee provided it is received in time.
Rule 8(2) provides:
“The Council shall, if it considers it appropriate, conduct, through the solicitor or otherwise, an investigation before the matter is first considered by the Preliminary Proceedings Committee and if such an investigation indicates that the practitioner may be removed from the register, the Registrar shall send to the practitioner copies...
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