Todorka Georgieva v the Nursing and Midwifery Council (Scotland)

[2017] SC EDIN 12

Facts

Todorka Georgieva (the pursuer) was registered as a nurse in Scotland on 8 October 2007.

On 3 and 4 April 2014 and 26 August 2014, an Investigating Committee (IC) of the Nursing and Midwifery Council (the Council) sat to consider an allegation that the pursuer’s registration may have been fraudulently or incorrectly made, in that details contained in the Bulgarian nursing qualifications submitted in support of her registration may have been untrue.

Over the years the pursuer had made a number of applications for registration both as a nurse and midwife dating back to 2002. These applications were supported by professional qualifications which were translated from the original Bulgarian transcripts. During the course of investigation into the pursuer’s applications, certain significant discrepancies relating to the detail, provenance and authenticity of these various documents came to light.

During the proceedings of 3 April 2014, the Council’s case presenter made an application to have admitted into evidence the decision of the Registrar’s Appeal Hearing, which had been convened in 2012 to consider an appeal by the pursuer against a decision of the Council’s Registrar to refuse her application to be registered as a midwife in Scotland. This decision concluded that the pursuer had “deliberately provided false documents” in support of her application to be registered as a midwife. The IC allowed the earlier decision to be admitted as evidence indicating that members of the panel would attach such weight to it that they considered “fair and appropriate”.

By decision letter of 1 September 2014, the pursuer was informed that the IC had concluded that her entry onto the nursing register was fraudulently obtained and the charge against her was proved. She was struck off the nursing register.

The pursuer appealed against the decision to remove her name from the register, arguing that the decision by the IC to admit the decision of the Registrar’s Appeal Hearing was unlawful, irrelevant and unfairly admitted. As a consequence, it was argued the decision to remove the pursuer from the nursing register was unlawful and the proceedings invalidated.

Submissions

Counsel for the pursuer argued that the decision of the Registrar’s Appeal Hearing was inadmissible for the following reasons:

  1. it was irrelevant to the task of the IC
  2. it contained a prejudicial conclusion that the pursuer had deliberately provided false documents which must have influenced or at least tainted the decision of the IC
  3. even if it did not actually taint the process, there was at least a risk that it might have
  4. justice must be seen to be done and it was not seen to be done in this case

It was argued further that if the decision to admit the document was unlawful then the IC’s decision to remove the pursuer from the register was tainted and should consequently be quashed.

Counsel for the Council argued that the decision of the Registrar’s Appeal Hearing was relevant as part of the general background of the case and that admission of the document was not unfair having regard to the broad terms of Rule 31 of The NMC Council (Fitness to Practise) Rules 2004, which provides that evidence is subject only to requirements of relevance and fairness.

Court’s decision

It is well settled that a court must afford respect to the decisions of specialist professional tribunals, whose primary concern is the public interest, not the individual circumstances of the person concerned, nor with notions of punishment. It was noted by Sheriff Walsh QC, presiding, that the court will only act in cases of clear error, or where an order is excessive or disproportionate; where the decision was “plainly wrong” (Moody v General Osteopathic Council [2004] EWHC (Admin) 967).

The Court asked itself two questions:

  1. what is the responsibility of the IC in a case such as the present?
  2. in what way is it said the pursuer in the present application was denied natural justice and a fair hearing on the allegation against her?

In determining the first question, Sheriff Welsh QC, relying on General Medical Council (GMC) v Spackman [1943] A.C. 627, determined that the responsibility of the ICwas simply the natural cannons of justice:

"When the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice.…….. the substantial elements of natural justice must be found to have been present at the inquiry. There must be due inquiry. The accused person must have notice of what he is accused. He must have an opportunity of being heard, and the decision must be honestly arrived at after he has had a full opportunity of being heard.”

In determining the second question, Sheriff Welsh QC considered the decision letter of 1 September 2014 in some detail. It was noted that while the IC admitted the decision of the Registrar’s Appeal Hearing into evidence, it stated it placed little weight on its findings as it was not clear what information that panel had before it. It was determined that the decision to allow the document into evidence was not unlawful as it was relevant to the background of the case in all the circumstances.

Sheriff Welsh QC stated that what would have been unlawful in the circumstances is if the IC had abrogated its responsibility to make due inquiry and investigate the complaint. Had the IC made no inquiry at all and simply adopted and incorporated the Registrar’s Appeal Hearing decision into its own decision without due process, or used the decision as a material building block in the construction of its decision, then that would have been unlawful because the IC was charged with the duty to investigate.

Sherriff Welsh QC noted that the IC:

“…conducted its own inquiry and performed its own autonomous, analytical and rational exercise to fulfil its duty, hear the evidence relating to the complaint and decide if there had been a fraudulent entry onto the register arising from alleged discrepancies in the various documents. This was done in the immediate presence of the pursuer who was legally represented which was fair and conform to due process regulating the conduct of such inquiries by the Councils. The Committee acknowledged the onus was on the defenders to prove its case. Evidence was led from witnesses. The Committee identified and specified the facts which it accepted and relied upon to support its conclusions and gave cogent and balanced reasons for so doing. The Committee took into account the evidence of the pursuer including her explanations, which it rejected, as it was entitled so to do. But importantly, even having rejected her evidence in explanation the Committee, recognising where the onus of proof lay, went on to consider the Council’s case on its own merits to the correct legal standard and, having concluded it was more compelling, decided against the pursuer. The pursuer was advised of her right to appeal. In my opinion the procedural right of the pursuer to a fair hearing were honoured in all respects.

The mere fact that the IC reached the same conclusion as the Registrar’s Appeal Hearing, on broadly similar evidence, did not invalidate the IC’s decision and make it “plainly wrong”, even if the IC has had sight of the earlier Registrar’s Appeal Hearing decision. Relying on the case of R. (on the application of Squier) v GMC [2015] EWHC 299, Sheriff Welsh QC noted that it is clear that what is prohibited is adoption and substitution of a decision by a disciplinary body charged with the duty of investigation into disciplinary allegations.

Sheriff Welsh QC distinguished the decision in Enemuwe v NMC Council 2015 WL 4938278, in which the decision of a Conduct and Competence Committee was quashed after they had relied on the findings of an earlier investigation, from the present case. The IC did not, in his view, use the Registrar’s Appeal Hearing decision to reach its own findings and conclusions. Instead it conducted its own forensic investigation and reached the same conclusion through an autonomous process of inquiry and reasoning. This was vastly different from the approach taken by the Conduct and Competence Committee in the earlier case.

While Sherriff Welsh QC accepted that justice must not only be done but be seen to be done, he was not persuaded that the admission of the earlier decision in the present case occasioned an injustice or that on any view such a conclusion could be justified. In reaching this conclusion he adopted the approach in Constantinides v Law Society [2006] EWHC 725 (Admin); (2006) 156 N.L.J. 680 where the court held a Tribunal had been entitled to read a decision of a High Court judge which made a finding of dishonesty against a solicitor and rely on the judgment as admissible to prove background facts in the context of the misconduct alleged.

The appeal was refused.

Comment

This decision confirms that, when considering an allegation against a registrant on behalf of a regulatory body, a Committee is not precluded from admitting into evidence an earlier decision relating to similar facts. While it makes clear that it would be unlawful for a Committee to abrogate its responsibilities to investigate and simply adopt earlier findings, provided that the Committee conducted its own inquiry and performed its own autonomous, analytical and rational exercise to fulfil its duty, they are entitled to consider that decision for the purposes of background and as part of a wider investigation.