Bernadette Patricia McDaid v Nursing and Midwifery Council (NMC) [2013] EWHC 586 (Admin)

Ms McDaid (M), a midwife, appealed against a decision of a panel of the NMC’s Conduct and Competence Committee (CCC) which had found her guilty of misconduct and ordered that she be struck off the register.

M had faced a number of allegations relating to conduct over a three and a half year period. These included allegations of breaches of confidentiality, dishonesty, unprofessional and aggressive behaviour, and sending inappropriate and aggressive correspondence.

M’s appeal was raised on a number of grounds which included: (1) that the hearing should not have proceeded in her absence, (2) that one of the panel members should have recused himself for want of impartiality, and (3) that the hearing, in general, had been conducted unfairly by the panel.

Central to M’s appeal was her argument that the allegations had been false and raised as part of a conspiracy following a whistleblowing incident to the Daily Mail in 2003.

In relation to proceeding in absence, the court affirmed that the correct approach was that from Tait v The Royal College of Veterinary Surgeons [2003] UKPC 34. It held that it was clear from the panel’s decision that it had proceeded with the required level of ‘utmost care and caution’, and that M had failed to give an adequate explanation as to why she did not attend on each of the ten hearing days.

The court also affirmed that the approach in Porter v Magill [2002] 2 AC 357 (discussed above) should be followed when determining questions on bias. By way of background, the panel member with whom the appellant took issue was a senior midwifery practitioner. M argued that this panel member’s knowledge - as a fellow senior NHS practitioner - of two of the witnesses in the case, and his having met another witness, meant that he was not independent. The court, however, rejected this argument stating that, absent any acquaintance with these individuals, it was ‘unpersuaded that any fair minded and informed observer having considered the facts would conclude or even might conclude that there was a real possibility that the panel was biased.’

The court was also unpersuaded in relation to the appellant’s argument of generalised unfairness. While agreeing that there was a duty on the panel to explore weaknesses in the NMC’s case, it rejected the submission that this extended to cross-examination of its witnesses. The duty was one of taking ‘reasonable steps’ and by thoroughly questioning a number of witnesses. The court was satisfied that this duty had been adequately fulfilled.

However, the appeal was allowed on the basis of new evidence. In particular, the appellant produced a letter which had not been before the panel but was argued to contain crucial supporting evidence in respect of at least one of the allegations. Whilse the court was disparaging about an application to introduce new evidence being made at the appeal stage, it agreed that the letter was very important and that conclusions made on the allegation in question without the letter could have had the effect of ‘potentially infecting’ conclusions in respect of the case as whole. It therefore quashed the decision and remitted the case back to a new panel of the CCC.