Vasanta Marni Suddock v The Nursing and Midwifery Council  EWHC 3612 (Admin)
The decision of Mrs Justice Andrews DBE in this appeal may make difficult reading for the Conduct and Competence Committee (CCC) which adjudicated upon this Nursing and Midwifery Council (NMC) case.
An appeal was brought under Article 29(9) of the Nursing and Midwifery Order 2001 by the Appellant, Ms Suddock, against decisions made by the NMC’s Conduct and Competence Committee, in respect of allegations made against her, which were heard alongside allegations against another registrant, known as Registrant C. The original hearing took place over a period of 18 days between March and July 2015.
Ms Suddock faced a total of 17 charges of professional misconduct, which were broken down into separate sub-charges, under different topics, including administering poor clinical care and bullying and harassment. Ms Suddock represented herself and denied all the charges made against her.
The decision was handed down in July 2015; the NMC found that some, but not all, of the allegations of professional misconduct charged against Ms Suddock had been proved. None of the charges alleging dishonesty were proved. Despite that, the Panel concluded that Ms Suddock's the misconduct warranted the most serious sanction available, being a striking off order.
Ms Suddock appealed against this decision on two principal grounds: firstly, that she was not afforded a fair hearing and that there had been a breach of Article 6; and, secondly, that the adverse findings made by the Panel were made contrary to the weight of the evidence, as the Panel had ignored contemporaneous documentary evidence; or alternatively the Panel's decisions relied upon evidence that was demonstrably unreliable and/ or untruthful.
Mrs Justice Andrews agreed with the second limb of Ms Suddock’s argument in respect of certain of the charges. She ruled that the findings made by the Panel on those charges could no longer be regarded as safe. She stated that:
“The real problem, as I shall go onto explain, is not one of procedural unfairness, or denial of access to justice; it is that the Panel failed to appreciate that there is evidence that strongly supports Ms Suddock’s assertion that someone, acting in bad faith, has set out to ruin her hitherto unquestioned professional reputation and her career. I have regrettably concluded that the Panel’s approach to the question of credibility and reliability is so undermined in consequence that I cannot, in fairness, allow its adverse findings to stand.”
Whilst emphasising that fault did not lie at the hands of the NMC, and acknowledging that the Panel made a number of correct assertions in finding some of the charges not proved, she opined that the Panel’s error was a failure to examine the evidence in the way that a court or tribunal would. In her view the Panel placed far too much reliance on the demeanour of the witnesses and it did not conduct a full and comprehensive exercise in seeking to establish the credibility and motives of the witnesses when coming to its decision.
The matters in relation to which the charges against Ms Suddock were based allegedly took place while she was Home Manager and Matron at the Warberries Nursing Home (“the Home”) in Torquay between February 1994 and 18 October 2011.
On 2 August 2011, the company which ran the Home went into administration, causing several members of staff to leave. The administrators, Ernst & Young, removed the directors and appointed a management consultancy, Health Care Management Solutions (“HMCS”) to support the operations in the Home during the administration. New owners, Margaret Rose Care Ltd “(“MRS”) purchased the Home in November 2011. In August 2011 Ms Suddock emailed the Regional Manager of HMCS, setting out a series of concerns about the administrators’ decision to halt certain maintenance work that was being undertaken. HMCS suspended Ms Suddock from duty that day.
Legal proceedings in the Employment Tribunal followed, during which Ms Suddock argued that, following her suspension, two members of the healthcare staff (in “Team 3”), who later became witnesses in the NMC hearing, took the opportunity to make up allegations of bullying against her because she had challenged that team about the poor level of care they were providing. Mrs Justice Andrews opined that Ms Suddock’s reasons as to why Team 3 had a grudge against her were not something she made up for the purposes of the NMC hearing; this was corroborated by another member of staff who was not called as a witness before the NMC’s Panel. She stated that: “Therefore this was not a case in which the registrant was raising a wholly fanciful conspiracy theory. On the contrary, there may have been a motive for HMCS to encourage the making of such allegations, or the exaggeration of the conduct alleged.”
Relevant legal principles
Mrs Justice Andrews was at pains to point out that although the appeal was by way of a re-hearing, that did not mean it was a complete re-visitation of the merits. She applied the principles set down in case law (including Raschid and Fatnani v GMC  EWCA Civ 46), being that where matters of professional judgement or standards of practice and conduct are concerned, the Court will respect, and generally defer to, the expertise of the professional body and the professional tribunal which made the original decision; it is only if the decision taken fell outside the “reasonable margin of appreciation afforded to the tribunal”, or created an injustice, that the Court would interfere with it on appeal. Her attention was also drawn to guidance given by the Court of Appeal in Southall v General Medical Council  EWCA Civ 407 which set down the following principles:
- findings of fact, particularly if founded on an assessment of the credibility of witnesses, are virtually unassailable. The Court must be satisfied that they are plainly wrong before it will interfere;
- the Court should only reverse a finding of the facts if it can be shown that it was sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread;
- where issues of credibility and reliability are key to the decision under challenge, the first instance tribunal can better establish a witness’s credibility and reliability as they have the advantage of seeing and hearing the witness. Given that the advantage is very significant, the appellate court should be slow to interfere with findings on credibility or reliability.
Despite these principles, Mrs Justice Andrews expressed significant disquiet about the Panel’s analysis of the reliability and credibility of the witnesses brought by the NMC. She concluded that in many instances the Panel justified its decisions with reference to its findings on the credibility and/ or reliability of witnesses. The positive findings of credibility were pertinent to elements of the charges relating to failure to ensure appropriate care and bullying and other inappropriate behaviour. She opined: “Initially, on the face of it, these appeared to be decisions of a type with which this Court would not normally interfere on appeal. However, the more I examined the evidence, the more it became apparent that there was genuine cause for concern, and Ms Suddock’s feeling that she had not been dealt with fairly became understandable.” With regard to the findings on one charge, which was allegedly substantiated by one particular witness, she opined that “no reasonable tribunal which approached that evidence in a correct manner could have placed any weight on it, let alone found that a charge which depended solely on that evidence had been proved”.
In summary, she stated that “when one adds into the equation the attempt to frame Ms Suddock, it becomes obvious that justice dictates that none of the adverse decisions under challenge on this appeal that depended on assessments of credibility should be allowed to stand. That evidence wholly undermines their safety”. She also reaffirmed that a finding of credibility based solely on demeanour was not reliable.
In evaluating each of the findings of fact upon which a finding of misconduct was made, Mrs Justice Andrews made a number of findings on the lack of credibility of various of the witnesses in the case, based upon the inconsistencies in their evidence and apparent hostility towards Ms Suddock.
This was a case in which Mrs Justice Andrews was of the view that the decision taken by the Panel fell outside the “reasonable margin of appreciation afforded to the tribunal”, and created an injustice; she therefore decided that that the Court was able to interfere with it on appeal, and not defer to the professional expertise of the original Panel.
Where it was possible for her to conclude that on the NMC’s case, taken at its highest, the burden of proof was not discharged, she allowed the appeal, quashed the Panel’s findings and substituted a finding that the charge was not proved. She therefore quashed a number of the Panel’s findings, whilst leaving a small number undisturbed. However, despite her findings, she invited further submissions from the parties as to the fairness of remitting those quashed charges to a different panel of the NMC’s Conduct and Competence Committee. She was strongly of the view that remitting them to the original Panel would not be fair.
After consideration, she concluded that it was reasonable to remit the quashed charges back to the NMC’s Conduct and Competence Committee, as it was “just about possible” to have a fair hearing despite the time that had elapsed. She ruled that a number of charges should be remitted for consideration by a fresh panel, on a number of conditions. In particular, she urged the NMC to carry out a full review of the evidence and make decisions as to whether it wished to continue with the allegations.
This case re-emphasises the principle that tribunal panels should exercise extreme care when assessing the credibility of witnesses. An assessment of demeanour is not sufficient; inconsistencies in the evidence and possible motive, if apparent, should be explored carefully and assessed appropriately. Decisions made on credibility should be well reasoned and transparent so as to inform any reader of the decision as to the basis upon which it was made.