Terence Paul Golden v The Nursing and Midwifery Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ritchie |
| Judgment Date | 21 March 2023 |
| Neutral Citation | [2023] EWHC 619 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | CO/1926/2022 |
[2023] EWHC 619 (Admin)
Mr Justice Ritchie
CO/1926/2022
In the High Court of Justice
King's Bench Division
Administrative Court
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant appeared in person
Matthew Cassells of NMC Legal appeared for the Respondent
Hearing date: 8 th and 9 th March 2023
APPROVED JUDGMENT
The Parties
The Appellant was a nurse and midwife whose name was on the register maintained by the Nursing and Midwifery Council (“NMC”) and has been struck off.
Respondent is the NMC which struck the Appellant off the register after a disciplinary hearing.
Bundles
For the appeal I was provided with three bundles by the Respondent, the first two contained evidence and documents and the third contained authorities. I was also provided with five bundles by the Appellant, the fourth of which contained authorities.
The background
The Appellant is an independent midwife who was contacted by a pregnant woman, who I shall refer to as M, to be her private midwife for her planned birth in France. She did not wish to use the local French hospitals or State midwifery services or the private French midwifery services but instead wished to have a home birth in her house in France with an English registered midwife. This was her first child. She entered into a contract with the Appellant, which was drafted by him, for him to provide a minimum of three weeks of midwifery services before, during and after her calculated due date until the baby was 2/3 weeks old. She paid £3,000 for those services plus travel expenses.
The Appellant drove to France on the 31st of August 2019 and stayed in a caravan near M's house to provide the services before and after her stated due date which was the 9th of September 2019. Contractions did not start and her waters did not break (as I shall find below) before or on the due date. M and the Appellant agreed that the Appellant should leave on 17 th September 2019 but should return urgently for the birth of her child. Subsequently, by emails and messages, M and the Appellant communicated but they eventually fell out and the Appellant regarded the contract as ended so he said so in an email he sent to M on the 8th of October 2019. That very day M went for a private scan of her baby near her village in France and a decision was made for her to have induction of labour. She went to a French hospital on 10 th October where she gave birth to a live, healthy baby. Thankfully this is a not a claim for damages for personal injury or clinical negligence.
Both before and after the birth M complained to the Appellant about the standard of care he had provided and at one stage demanded a refund of £1,500. The Appellant denied any breach of duty. M then complained to the NMC and that complaint started a disciplinary process which led to a full fitness to practise panel (“FTPP”) hearing which took place over 12 days between the 1st of April 2022 and the 20th of April 2022. The Appellant did not attend the final hearing or take part in it. He did not provide his own witness list or bundle of documents for the FTPP final hearing in advance of the hearing when requested to do so or at all and failed to attend the pre-hearing case management meetings. He failed to fill in the case management forms. He failed to provide a signed and dated witness statement from himself or any witness statement containing his own evidence on the events in France in the summer of 2019.
The result of the hearing was that the Appellant was struck off the register of midwives held by the Respondent. The Appellant appeals the findings of fact and the determination that he was unfit to practise and the sanction of striking off.
Law and procedure
NMC regulatory functions
The NMC's functions in respect of allegations of misconduct against registered nurses and midwives are governed by the Nursing and Midwifery Order 2001 (“the Order”). The proceedings of the FTPP are governed by the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 (“the Rules”). The over-arching objective of the NMC in exercising its functions is the protection of the public (Article 3(4) of the Order). The pursuit of this over-arching objective involves the following integral objectives: (1) the protection, promotion and maintenance of the health, safety and wellbeing of the public; (2) the promotion and maintenance of public confidence in the profession; (3) the promotion and maintenance of proper standards and conduct by registered members of the profession (Article 3 (4A) of the Order).
By virtue of Rule 6C(2)(a)(ii), the Fitness to Practise Committee must consider any allegation referred to it by the Case Examiners and if, having considered the allegation, it considers that it is well founded, must proceed to make one of a number of prescribed decisions, which by Article 29(5) (a) – (d) include: a striking off order, a suspension order, a conditions of practise order or a caution order.
Appeals
Articles 29(9) and 38 of the Order allow a registrant to appeal against a decision made by the FTPP. By virtue of Article 38(3) of the Order, the Court is empowered to: (a) dismiss the appeal; (b) allow the appeal and quash the decision appealed against; (c) substitute for the decision appealed against any other decision which the FTPP could have made, or (d) remit the case to the FTPP concerned or the Council, as the case may be, to be disposed of in accordance with the directions of the Court.
By virtue of Civil Procedure Rules r. 52.21(3) the Court will only grant such an appeal where the decision of the lower court (FTPP) was: (a) wrong or (b) unjust because of a serious procedural or other irregularity.
Under CPR r. 52.21 and PD52 para. 19.1, in appeals under Art. 38 of the Order every appeal must be supported by written evidence and “if the court so orders, oral evidence and will be by way of re-hearing”.
The approach to be taken by the Courts in relation to appeals such as this has been considered in Cheatle v General Medical Council [2009] EWHC 645. Cranston J. at paras. 12–15 summarised the procedure thus:
“Appeals from a Fitness to Practise Panel
12. The appeal to this court from a Fitness to Practise Panel is under section 40 of the 1983 Act. Section 40 (7) permits the court to dismiss the appeal, to allow it and to quash a direction for suspension, to substitute a different direction or to remit the case. The appeal is by way of a re-hearing. The relevant practice direction offers no guidance as to what this means: see CPR 52 PD. 116 (2). Clearly it is not an appeal confined to a point of law, but neither at the other end of the spectrum is it a de novo hearing, where the court hears the witnesses giving evidence again. The basis of intervention appears to be broader than that for judicial review. On at least one view there is a tension between two Court of Appeal decisions as to the approach to be adopted. At first instance in Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] QB 462, Collins J said that an appeal was not limited to review, although the court would not interfere with a Fitness to Practise Panel's decision unless it was clearly wrong. The Court of Appeal agreed, but doubted that the word “clearly” added anything (paragraph 125). Auld LJ said (Sir Anthony Clarke MR and Thorpe LJ agreed) (paras 69 and 282):
“… it is plain from the authorities that the Court must have in mind and give such weight as is appropriate in the circumstances to the following factors: (i) The body from whom the appeal lies is a specialist Tribunal whose understanding of what the medical profession expects from its members in matters of medical practice deserve respect: (ii) The Tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides; (iii) The questions of primary and secondary fact and the over-all value judgment to be made by Tribunal, especially the last, are akin to jury questions to which there may be reasonably be different answers.” (para 197).
13. Raschid and Fatnani v General Medical Council [2007] EWCA Civ 46; [2007] 1 WLR 1460 was an appeal on sanction. In the first case Collins J had substituted a suspension of one month for one of twelve months, and in the second a suspension of twelve months for erasure. The GMC's appeals were allowed. Laws LJ reviewed Privy Council decisions on the appellate role in GMC matters. In a judgment with which Chadwick LJ and Sir Peter Gibson agreed Laws LJ held that those decisions established two strands of learning, first, that a principal purpose of a Fitness to Practise Panel was the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, and secondly, it was necessary to accord special respect to its judgment. The High Court would correct material errors of fact and of law and it would exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case (para 20). Laws LJ expressly disagreed with the approach adopted by Collins J in Meadow, unless it was read in the context of the two strands in the learning (para 21).
14. The hearing before the Court of Appeal in Raschid took place just after the Court of Appeal gave judgment in Meadow but it was not drawn to the attention of the court deciding Raschid. These two decisions were reviewed by Wyn Williams J in Rumbold v GMC [2007] EWHC 2569 (Admin), [2008] LS Law Med 169, but he did not need to decide which was correct (paras 17–30). See also Cohen v GMC [2008] EWHC 581 (Admin), [2008] LS Law Med 246 paras 19–26.
15. In my view the approaches in Meadow and Raschid are readily reconcilable. The...
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