R VICTORIA ADESINA v NURSING and MIDWIFERY COUNCIL
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MUNBY |
| Judgment Date | 18 October 2004 |
| Neutral Citation | [2004] EWHC 2410 (Admin) |
| Date | 18 October 2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/206/2004 |
[2004] EWHC 2410 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Munby
CO/206/2004
MR J PRETSELL (instructed by BAR PRO BONO UNIT) appeared on behalf of the CLAIMANT
MR R LAWSON (instructed by PENNINGTONS SOLICITORS) appeared on behalf of the DEFENDANT
Monday, 18th October 2004
This is an appeal from a decision of the Nursing and Midwifery Council finding the appellant guilty of misconduct and ordering that her name be erased from the Register of Nurses. I need not go into the details, but the finding against her was that she had accessed patient notes for a non-clinical purpose, that she had made inappropriate contact with a former patient in circumstances distressing to that patient, and that she had spoken to that patient inappropriately.
Having announced its findings on the facts, the Committee turned to consider mitigation and penalty. The solicitor representing the complainant called brief oral evidence which dealt with part of the appellant's former history. After that witness had withdrawn, counsel then appearing for the appellant (not counsel who appears before me today) addressed the Committee by way of mitigation. In the course of his submissions he is recorded in the transcript as saying this:
"You asked, madam, if there were previous matters and previous history. This Respondent has been a nurse for some 22 or 23 years without any previous complaint being recorded against her by this organisation. It is a one-off misjudgment that she has made, which has now come before you, and she has made that in the context of somebody who, as she said in evidence, was trying to move forward in her career —to learn new skills, to take on and enter into another part of the profession and to develop her skills in that area."
At no point during that mitigation did the appellant's counsel either call witnesses, or adduce written evidence by way of mitigation or in the form of character references. Nor was any adjournment sought for that purpose. Counsel's mitigation concluded with the submission that a caution was the appropriate penalty. The Committee then retired and returned after some 35 minutes. The chairman is recorded as having said this:
"Mrs Adesina [I interpret that as the name of the appellant], the Committee has considered your case very carefully. First we considered whether to postpone judgment, and we decided that postponement was not appropriate in your case.
"The Committee has decided to remove your name from the Register with immediate effect. We considered whether to specify that removal should be for a particular period of time, and decided that it would not be appropriate to specify any period.
"The reasons are that this was a one-off matter but, for all that, the Committee regards it as a serious incident of misconduct. What makes it the more serious is your lack of insight, your apparent lack of remorse and your failure to recognise the seriousness of what you did. We are very concerned at your continued denial of your behaviour, and the determined way in which you persisted in this denial.
"We are also very concerned at your failure to produce any references relating to your past and present employment.
"We have come to the conclusion that, in the interests of public protection, it is necessary to remove your name from the Register. We will confirm this decision in writing to you. That concludes the case."
Shortly thereafter the Committee's decision was indeed confirmed, in all essentials, in precisely the same terms to the appellant in writing.
The appeal to this court, as originally formulated, sought to challenge both the Committee's findings of fact and the penalty it decided to impose. Before me Mr James Pretsell, who appears today on behalf of the appellant, expressly abandoned any challenge to the Committee's findings of fact. He confined the appeal to three issues going to the penalty the Committee imposed, and the way in which it went about its decision in relation to penalty.
His first complaint is that in drawing attention to what it found to be the appellant's lack of insight, lack of remorse, failure to recognise the seriousness of what she had done, and continued denial of her behaviour, the Committee adopted an incorrect approach in its assessment of penalty. Mr Pretsell complains that the effect of the Committee's approach was, as he would have it, to treat her not guilty plea as a factor aggravating the penalty to be imposed. He recognises, praying in aid the analogy of the criminal courts, that the appellant cannot claim the benefit, by way of mitigation, of a guilty plea, but he submits it was wrong for the Committee to impose a higher penalty than would otherwise would have been imposed, simply because she pleaded not guilty.
I cannot accept that complaint. The analogy sought to be drawn between proceedings in a criminal court and proceedings before a professional disciplinary tribunal is largely, if not wholly, inapt. As Lord Roger of Earlsferry observed when giving the judgment of the Privy Council in Gupta v General Medical Council [2001] UKPC 61, [2002] 1 WLR 1691, paragraph 21:
"… where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned … since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction."
This professional tribunal, like similar professional tribunals, is concerned primarily, when it comes to questions of penalty, with the protection of the public and the safeguarding of the reputation of the profession, rather than with the punishment of the individual practitioner concerned.
It is highly relevant, as it seems to me, in a case such as this, to bear in mind the character of the particular profession concerned and the nature of the complaint which has been found established. The appellant is a member of the midwifery profession. Fundamental to that profession, as to the nursing profession and the medical profession, are the principle that the interests of the patient come first and principles of patient confidentiality. Those were the very principles which, in this particular case, form the basis of the findings of the Committee.
The appellant, as I have said, was found to have accessed patient notes for a non-clinical, that is to say for a non-professional, purpose, and to have made inappropriate contact with and spoken inappropriately to a former patient. It seems to me highly relevant where the findings were of that nature, for the Committee to assess the extent to which the appellant did, or as they found did not, recognise the seriousness of what she had done.
Equally it was, it seems to me, highly relevant for the Committee to assess the extent to which the appellant did, or did not, as in the event they found, have insight into what had happened. The Committee was not, as I read their decision, applying any general principle that a denial of itself justified any particular penalty. What the Committee was saying was that in this particular case, bearing in mind the nature of the complaints which had been found established against the appellant, it was highly relevant, in their view, when they came to consider the protection of the public, to assess such matters as insight, remorse, recognition of the seriousness of what the appellant had done, and the other matters to which they made reference.
There was, in my judgment, no error of law and no error of principle or approach in the course which the Committee adopted. They were entitled to take into account, in my judgment, each of the matters to which they drew attention in their reasons. They were entitled, in my judgment, to treat each of those matters as being, in the particular circumstances of this case, aggravating features, which made this, as they recognised, one-off matter, as they put it, "more serious" than it might otherwise have been.
Mr Robert Lawson of counsel, who appears before me this afternoon on behalf of the defendant (and who, for the avoidance of any confusion or misunderstanding I should emphasise is not the Mr Lawson of counsel who appeared on behalf of the appellant before the Committee) has helpfully drawn my attention to the judgment of Richards J in the case of R (On the application of Clarke) v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2004] EWHC 1350 (Admin), paragraph 35. There complaint was made, in a very similar type of case, of the fact that the Committee had, in part, justified the penalty imposed because the appellant had not, in that case, demonstrated that he was aware of the seriousness of his actions.
Commenting on that complaint, Richards J said:
"In my judgment, however, it was highly relevant for the Committee to consider whether the appellant had shown insight into the misconduct found proved against him, and the assessment made was plainly one reasonably open to the Committee on the evidence before it."
That, in my judgment, applies as much to the present case as to the case with which Richards J was concerned.
I turn to the second complaint raised by Mr Pretsell on behalf of the appellant. It relates to the fact that, as we have seen, the Committee expressed itself "very concerned" at the appellant's...
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