Watters v Nursing and Midwifery Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Cheema-Grubb |
| Judgment Date | 05 July 2017 |
| Neutral Citation | [2017] EWHC 1888 (Admin) |
| Docket Number | CO/1458/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 July 2017 |
[2017] EWHC 1888 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Cheema-Grubb DBE
CO/1458/2017
The Appellant appeared in person
Ms Louise Hartley (instructed by the Nursing and Midwifery Council) appeared on behalf of the Respondent
This is an appeal brought pursuant to Article 38(1) of the Nursing and Midwifery Order 2001 following a decision of the Nursing and Midwifery Council's Conduct and Competence Committee ("the Panel") set out in a notice of their decision dated 23 February 2017. Following a hearing over the course of three days, the Panel determined that the appellant's fitness to practise as a nurse had been impaired by reason of misconduct, and they concluded that it was necessary and appropriate to make a striking-off order in respect of her registration as a nurse.
The appellant lodged the appeal notice on 22 March 2017 and she has been subject to interim suspension since the Panel's determination of the appropriate sanction.
The basis of this appeal is that the Panel's decision on contested factual matters, misconduct and impairment were unfair and wrong, and that the sanction imposed by the Panel was excessive and disproportionate in all the circumstances. It should be noted that, having received the appellant's notice of appeal, the respondent has conceded that the sanction imposed by the Panel was excessive and disproportionate. Ms Hartley for the respondent submits that a suspension of 6 months from the date of the Panel's decision would have properly met the gravity of the misconduct found to have occurred, and that in light of the interim suspension a period of 3 months would now be appropriate. This offer was made to the appellant on 21 June 2017 by the respondent offering to replace the striking-off order with a suspension order for a period of 3 months. However, that was not acceptable to the appellant, who maintains that she has lost faith and trust in her profession's regulatory body.
Some further time now having passed, Ms Hartley indicates that a suspension of 2 months from today, should the appellant fail to overturn the Panel's findings adverse to her on her conduct, would be sufficient.
The law
The Nursing and Midwifery Council has responsibility for regulating and supervising the conduct of nurses and midwives. The respondent was established by the Nursing and Midwifery Order 2001, which provides in Article 3 its objectives and by (4) states the following:
"The main objective of the Council in exercising its functions shall be to safeguard the health and well-being of persons using or needing the services of registrants."
It is plainly an important body, and it is equally necessary that its processes and decisions are transparent and justifiable both in the interests of persons using or needing the services of registrants, but also registrants themselves.
Article 21 of the 2001 Order requires the respondent to establish and keep under review standards of conduct, performance and ethics, together with effective arrangements to protect the public from registrants whose fitness to practise is impaired. Article 27 requires the Panel to consider allegations referred to it, and Article 38 governs the power of the High Court to consider an appeal from an order or decision of the Panel. Having heard an appeal, the High Court may allow or dismiss it, substitute for the decision appealed against any other decision that could have been made by the Panel, or remit the matter to the Panel.
The relevant tests have been considered in a number of cases that come before High Court judges by way of appeal, most recently in Nkosana Brian Lusinga v Nursing and Midwifery Council [2017] EWHC 1458 (Admin), in which Kerr J made observations on an appeal against striking off, to which I will have reason to return at the end of this judgment.
The test to be applied on an appeal has been articulated by Cranston J in Cheatle v GMC [2009] EWHC 645 as follows:
"15. The test on appeal is whether the decision of the Fitness to Practise Panel can be said to be wrong. That to my mind follows because this is an appeal by way of rehearing, not review. […] However, in considering whether the decision of a Fitness to Practise Panel is wrong the focus must be calibrated to the matters under consideration. With professional disciplinary tribunals issues of professional judgment may be at the heart of the case. Raschid was an appeal on sanction and in my view professional judgment is especially important in that type of case. As to findings of fact, however, I cannot see any difference from the court's role in this as compared with other appellate contexts. As with any appellate body there will be reluctance to characterise findings of facts as wrong. That follows because findings of fact may turn on the credibility or reliability of a witness, an assessment of which may be derived from his or her demeanour and from the subtleties of expression which are only evident to someone at the hearing. Decisions on fitness to practise, such as assessing the seriousness of any misconduct, may turn on an exercise of professional judgment. In this regard respect must be accorded to a professional disciplinary tribunal like a Fitness to Practise Panel. However, the degree of deference will depend on the circumstances. One factor may be the composition of the tribunal."
I deal firstly with the case brought against the appellant and her challenge to the conclusions of the Panel. The facts of this case are within a small compass and centre upon a single certificate. The certificate provided by A+A Training and headed "Level 3 Adult Immediate Life Support" was awarded to the appellant following her successful participation in a one-day study programme on 27 May 2014. Between that date and 20 January 2016, the date of the certificate was altered by hand to read "27 August 2015". A copy of the certificate was submitted by the appellant in support of an application she made for work with a nursing agency called Career Healthcare. She also referred to the certificate within the body of the electronic application form, and included therein the date of 27 August 2015. In fact, as uncontested evidence before the Panel demonstrated, the appellant had undertaken the relevant training and received the certificate in 2014, but not within the 12 months prior to her application. The alteration was spotted, and in due course the appellant was referred to the Nursing and Midwifery Council on 1 February 2016.
The appellant's case was and remains that she inadvertently submitted the particular certificate concerned with a number of others about which there was no complaint. She had not made the alteration herself and she did not know how it had come about, and in including the 2015 date in her electronic form she had not sought to mislead anyone because she had merely copied the amended certificate without realising it had been falsified. In essence, she admitted that she had behaved carelessly, but denied the misconduct alleged against her, and she drew attention to her particular circumstances at the time that she filled in the electronic form.
The appellant faced five charges. The word "knowingly" was included in the first two charges but removed at the application of counsel for the Nursing and Midwifery Council at the beginning of the substantive hearing because it was thought to be superfluous and caused the charges to be repetitive. This was in reference to the range of charges laid. They were as follows:
"1: On or around 20 January 2016, submitted a certificate to Career Healthcare which indicated that you had completed Level 3 Adult Immediate Life Support training on 27 August 2015, when you had not.
2. On or around 20 January 2016, submitted an application form to Career Healthcare indicating that you had completed Immediate Life Support training on 27 August 2015, when you had not.
3. Falsified an A+A Training certificate in that you changed the date from May 2014 to August 2015.
4. Your actions in Charge 1 and/or Charge 2, above, were dishonest in that you intended to give the impression that your training in Immediate Life Support was current/up to date when you knew it was not.
5. Your actions in charge 3 above were dishonest in that you knew you had not attended training in Level 3 Adult Immediate Life Support on 27 August 2015 but intended to create the impression that you had."
These charges were all in light of the appellant being a registered nurse and it was alleged that, as a result of her commission of these allegations, her fitness to practise was impaired by reason of this misconduct.
When asked to explain why five charges were considered necessary for the limited activity alleged against this appellant, Ms Hartley for the Nursing and Midwifery Council, who did not appear at the hearing before the Panel, explained that the first two charges concerned the submission of the falsified certificate without reference to any guilty knowledge; the third was for the alteration itself without any intent to mislead; and the last charges alleged the gravamen of the complaint, namely dishonesty. Whilst this appears to this court to be an overloaded list of charges, there was no objection to them at the hearing, and once the word "knowingly" was edited from charges 1 and 2 the appellant admitted those charges, consistent with the case that she ran at the time and which she relies...
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