R v The United Kingdom Central Council and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BURTON |
| Judgment Date | 18 May 2000 |
| Judgment citation (vLex) | [2000] EWHC J0518-7 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 May 2000 |
| Docket Number | CO/4204/98 |
[2000] EWHC J0518-7
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Royal Courts of Justice
Strand
London WC2
Mr Justice Burton
CO/4204/98
MR A WHITE (instructed by Thompsons, London WC1B 3LW) appeared on behalf of the Applicant.
MR R LAWSON (instructed by Ward Hadaway, Newcastle upon Tyne NE1 3DX) appeared on behalf of the Respondent.
MR A MCCULLOUGH (instructed by Office of the Solicitor, Department of Social Security, Department of Health) appeared on behalf of the Interested Party, the Department of Health.
Thursday, 18th May 2000
This is an application for judicial review of the conclusions of the Professional Conduct Committee of the UKCC, the United Kingdom Central Council for Nursing, Midwifery and Health Visiting, on 30th July 1998. The application comes before me in a somewhat unusual way. In the original Form 86A the Applicant preserved her position against the argument that there was an alternative remedy to judicial review that she should have pursued, namely an appeal against the decision of that Committee. In circumstances, which are not entirely clear, it was concluded that there should be a preliminary hearing before a Divisional Court of the issue as to whether there could be an appeal, and the Applicant lost that issue before Rose LJ and Forbes J on 21st July 1999. However, that cleared the way for this application to be pursued without the suggestion that it was barred by the existence of an alternative remedy, and the Divisional Court gave permission to apply for judicial review on that basis, which has now come before me.
Mr Anthony White of counsel has appeared for the Applicant before me, Mr Robert Lawson for the UKCC, and Mr Angus McCullough has intervened as counsel on behalf of the Department of Health because of a particular interest in one aspect of the application on which he has addressed me.
There were three grounds of challenge to the conclusions of the Committee but the first has not been pursued before me by Mr White, although it appeared in his Form 86A on which he was granted permission. The two grounds, therefore, which interrelate, have survived.
The short facts of the case are that the Applicant, who is a Registered General Nurse and an Enrolled Nurse (General) and thus required to be registered on the register maintained under section 7 of the Nurses, Midwives and Health Visitors Act 1997 by the UKCC, was employed between 1992 and 1996 by the Cleveland Constabulary, first as an Occupational Health Sister and then as an Occupational Health Advisor. The Cleveland Constabulary, like many others, has what is effectively its own private medical service described as an Occupational Health Scheme, or an Occupational Health Unit, by which the members of the police force are, or can be, looked at by a doctor and/or by the Health Sister (the Applicant at the material time), and may be capable of being in a position to be prescribed medicines.
As it happens, the evidence before this inquiry of the Force Consultant, a Dr Dellipiani, was that he was not at all keen on the prescribing of medicines or, at any rate, on the Applicant ever prescribing medicines to the police force and did not allow that to be done, save on specific occasions. That is part of the disputed background to the case to which I shall return. But, in fact, on various occasions, between February 1994 and June 1996, the Applicant ordered, from Dixon & Spearman Limited, prescription only medicines and then supplied, or dispensed, such medicines to fellow employees of Cleveland Constabulary and on one occasion the partner of one such employee. This was discovered and she was charged with two counts of misconduct before the PCC. The charges read as follows:
"1 (a) On various dates between 27/2/94 and 26/6/94, [you] ordered prescription only medicines without the authority of the Force Consultant; and
(b) that having ordered prescription only medicines, without the authority of the Force Consultant, you are guilty of misconduct.
2(a) On various and unknown dates between 27/2/94 and 26/6/96 [you] supplied prescription only medicines, without the authority of the Force Consultant; and
(b) that having supplied prescription only medicines, without the authority of the Force Consultant, you are guilty of misconduct."
As I have indicated, there were statements that were provided to the Committee (the PCC) by Dr Dellipiani in which he indicated that he had, on one occasion, signed a form for the Applicant to present to the pharmaceutical supplier, Dixon and Spearman Limited, but that that was limited to the occasion for which it was given (I think some specific injections for hepatitis) and that he never agreed either that that was a general permission, or that it could be used as a general permission, and never did authorise, on any other occasion, the Sister either to purchase or to dispense prescription only medicines.
The Applicant forcefully contested her innocence over a relatively long period of time leading up to the Committee and asserted that she had done what she believed to be lawful and right. She was not represented by solicitors or counsel but by a representative of her union. That representative had some short conversations with a representative of the solicitors who were going to be looking after the interests of the PCC prior to the hearing. It appears that the representative also obtained some information from her union, Unison, but, at any rate, come the hearing the Applicant and her adviser had decided that she would admit facts and effectively plead guilty to the charges. There is no doubt that she must have been influenced in that regard by the possible outcome of the charges.
The provisions of the relevant regulations, the Nurses, Midwives and Health Visitors (Professional Conduct) Rules 1993 at paragraph 18, provide for a hearing before the Conduct Committee when:
"if the [chargee] appears, the Chairman shall ask her whether on the basis of the facts which have been proved she admits the charge of misconduct; if she does admit misconduct the Conduct Committee shall nevertheless proceed to make a determination…; if she does not admit misconduct, the respondent either directly or through her representative may adduce both evidence and argument as to why the facts do not constitute misconduct…
18(2) The Conduct Committee shall then forthwith consider and determine whether in relation to the facts found proved as aforesaid the respondent is guilty of misconduct. If it determines that she is not guilty of misconduct in relation to some or any of such facts it shall record a finding to that effect and the chairman shall announce it in public."
In the event of a finding of proven misconduct then there are, it seems, only three options under 18(6) and 18(7): the first, apart from postponing judgment, is to remove the Respondent from the register, whether or not for a specified period; the second is to issue a caution as to the Respondent's future conduct, and the third is to conclude the case without taking any further action on the Respondent's proven misconduct, apart from having recorded that finding.
It appears clear that either as a result of something expressly said by Mr Love, the gentleman then instructed to look after the interests of the PCC, or as a result of common sense from a discussion between the Applicant's adviser and Mr Love which plainly took place, the Applicant and her adviser either were advised, or appreciated, that a caution would not be an option unless there were a full and frank admission of the misconduct. Mr Love, in his account of that conversation, accepts that at least in relation to what is called the "Preliminary Proceedings Committee" of the UKCC, which would have been the earlier procedure prior to the setting up of the Conduct Committee itself, he will have explained that that Committee can only issue a caution if a practitioner fully and frankly admits the allegation.
The Applicant did admit the charges at the hearing, in circumstances to which I shall return, and was dealt with by a caution, and through Mr White she now challenges the findings and the imposition of the caution. The challenge is on the following basis: that, albeit she admitted the misconduct, as appears from the regulation which I have read, and indeed as is not in issue so far as Mr Lawson is concerned, there had to be an independent conclusion by the PCC that there was such misconduct. Thus, unlike what one might otherwise have faced in the criminal Courts, namely some kind of case that, absent an equivocal plea, a Defendant was bound by the plea, there is no such bar here, and it is open to the Applicant to say that, notwithstanding her admissions, the Committee was wrong in law to conclude that she was guilty.
The basis upon which she challenges that the Committee was entitled to conclude that she was guilty differs in relation to each of the two offences. There are three contentions. The first is as follows: that the Committee was not entitled to find her guilty of Count 1 because there is, in fact, no offence under the Medicines Act 1968 of ordering prescription products without authority, and as that was the basis upon which she admitted the charge and/or was found guilty of it, consequently the charge cannot stand. Secondly, that, so far as concerns the second charge, of supplying fellow employees with prescription products, again without authority, although there is, on the face of it, an offence under...
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