High Court allow nurse’s appeal, holding that she was treated unfairly when she appeared, unrepresented, before NMC panel considering her fitness to practise.

Judgement date: 31 January 2014

A panel of the Conduct and Competence Committee (the Panel) of the respondent Nursing and Midwifery Council (NMC) found the appellant nurse (N) to have been guilty of misconduct, that her fitness to practise was impaired and that her name should be struck from the register. They further imposed an interim suspension order for a period of 18 months.

The hearing

The hearing lasted 8 days over the course of a number of months. N attended the hearing but she did not have legal assistance.

N faced 6 specific allegations about an incident that was alleged to have taken place on 13 July 2009. It was said that he shouted at the Practice Manager (Ms Booth) of the clinic at which she was working and made various aggressive and threatening comments, such as ‘I will kill you’ and ‘I will poke your eyes out’. This was in the context of an apparent refusal by N to accede to the Practice Manager’s request to test a patient’s urine and an ensuing disagreement between them.

The NMC relied upon the witness statements of 5 members of staff at the clinic, the most senior being Ms Booth and Ms Gonsai (the business development manager at the clinic). Oral evidence was given by the NMC witnesses, following which the Registrant gave evidence and was cross examined. She denied that she had been shouting, and essentially stated that any reaction she did make was as a result of the bag of urine being thrown at her by Ms Booth. It was N’s case that the NMC witnesses were lying about what had been said.

Having heard the evidence the Panel found the facts proven, concluding that there was no evidence that there had been any collusion between the NMC witnesses and that they were credible witnesses. In contrast they did not find N to be a credible witness.

On day 5 the hearing resumed to deal with impairment. The case presenter for the NMC informed the Panel that she proposed to recall both Ms Booth and Ms Gonsai at this stage to give evidence about a specific matter, namely previous concerns by the clinic about N’s attitude. It was argued that this was relevant as it showed that N had been previously warned about the type of behaviour in question. The legal assessor drew the Panel’s attention to the answer of Ms Gonsai when she had been questioned at the facts stage, namely that there had been no concerns prior to the incident of 13 July 2009. The case presenter at this stage divulged that Ms Gonsai had in fact telephoned her after giving evidence expressing a concern that the answer she had given in her earlier evidence had not been correct in this regard. The case presenter told the Panel that prior to Ms Gonsai giving factual evidence she had directed Ms Gonsai to only deal with the matters of fact relating to the 13 July incident and that previous matters would not be relevant until the impairment stage. It was noted by the Chair and the Legal Assessor that the fact and contents of the phone call should have been brought to the attention of N as soon as it had been received, however the Panel allowed the application for this further evidence to be heard. Ms Booth was called to give evidence and was questioned by all parties. The hearing adjourned part-heard.

At the resumed hearing (where the NMC was represented by a different case presenter) N made an application for the panel to recuse themselves or re-visit their findings on the facts in light of the irregularity which had occurred on the previous occasion (outlined above). This application was rejected and the case continued. A decision was taken by the new case presenter not to call Ms Gonsai; he said ‘I do not propose to rely on anything that she would say now’.The legal assessor advised that the prosecution were not obliged to call her and she duly did not give evidence. That concluded the evidence in the case.

The next day the Panel gave their reasoning for refusing to recuse themselves. They stated that although it was wrong for the case presenter to withhold the contents of the phone call, it had not given rise to unfairness. Both Ms Booth and Ms Gonsai had originally said that there were no previous concerns about N but that this was merely an error in the context of their being told they weren’t to discuss other matters at the facts stage and there had been no intention to mislead. The Chairman confirmed their findings of fact. 

They then went on to decide impairment. The case presenter had indicated that he was to rely on the previous two concerns that had been raised about N (that were not contained in the charge sheet). The Legal Assessor expressed his concern about this, outlining that the allegation of impairment was by reference to the drafted allegation. The Panel continued with the hearing, stating that they would defer its ruling on this point. N gave evidence again at this stage and she was cross examined by the case presenter about whether she agreed with the panel’s findings on each of the factual allegations. The Legal Assessor again expressed concern that it would be improper for the case presenter to try and get N to admit that which she had previously denied, however he could explore insight. N also protested. She did not, she said, understand the choice of words and the questions. There then followed a number of exchanges where N appeared not to understand the questions/purpose of what she was being asked and legal debate about the propriety or otherwise of the questions. The Chairman asked N whether she thought she was impaired. N asked him to repeat the question, but ultimately answered in the negative. 

The Panel found that N had been guilty of misconduct and that her fitness to practice was impaired. It had borne in mind the submission by N that she had been provoked, but rejected it. They found that there was a lack of insight in addition to attitudinal concerns and decided that erasure was the appropriate sanction.

The appeal

It was argued on behalf of N, who appeared represented on appeal, that the Panel ought not to have accepted the evidence of the NMC witnesses uncritically and that they did not carry out the necessary scrutiny and balancing exercise required, especially in light of the fact that two witnesses withdrew parts of their original evidence. It was further argued that the sanction was disproportionate.

Judgement

It was held that the information which emerged regarding the witnesses having given inaccurate evidence made it incumbent upon the Panel to tread carefully. What happened was described as ‘a procedural mishap’. If this ‘mishap’ had led to injustice then, the Court said, it would be reluctant to have upheld the panel decision. However, it was held that there was no injustice arising at the fact findings stage in this regard. N could have questioned the witnesses at the time about their statements and did not do so. In any event, it is unlikely that this would have affected the Panel findings of fact. The appeal in relation to the findings of facts therefore failed.

The Court was more concerned with how the issue of impairment was dealt with. In her submission to the Court, N commented that the word impairment is suggestive of a medical condition that affects her ability to look after patients. Walker J agreed that to the layperson the word ‘is indeed suggestive of something along these lines’. It was said that the transcript clearly demonstrates confusion on her part as to what impairment really involved. 

Walker J held that;

‘The feature of impairment which, to my mind, was never properly addressed in the evidence and submissions, concerned the distinction between a failure to have insight into the misconduct which had occurred, and a failure to have insight into the need in future to avoid being in a position where such conduct was likely to recur’ [156].

He went on to say that ‘there was a very important missed opportunity’. ‘There was a need to stand back from the emotionally charged incident of 13 July 2009…there was nothing to suggest that N had any understanding of how important it was for her to give evidence and make submissions about her ability to takes steps to ensure that in future there would be no incident similar to what happened on 13 July 2009’.[157]

Matters were said to have been ‘made worse by a thoroughly inappropriate approach to cross-examination’. The Panel’s findings of fact had been clear.‘In these circumstances it was both inappropriate and unnecessary for the prosecution to seek to question N about whether she agreed with the panel’s findings on each of the factual allegations….It was as plain as a pikestaff that N was not going to alter her stance about what had occurred on 13 July 2009’. It was said that although the Legal Assessor was technically correct that it was proper to ask the registrant whether she accepted the decision of the Panel, it was ‘unlikely in practical terms to lead to anything other than confusion’. [160]

It was held that N was perfectly entitled to say that she did not accept the findings of the panel; she had a right of appeal which she was entitled to exercise and that ‘in all the circumstances it was thoroughly inappropriate, almost Kafkaesque, to cross examine N in a way which implied that she would be acting improperly if she did not accept the findings of the regulator… The reality was that N did not have an appreciation of the real nature of the case that she had to meet in relation to impairment, namely that it was not just her insight into what happened on 13 July which the panel would wish to consider, but also her insight into what could be done in the future to avoid an incident of that kind recurring. In these circumstances, the panel’s finding that there was a high risk of repetition was vitiated by an unfair procedure’.

What was needed was a proper examination of how it was that N came to react in the way she did. Had N had an opportunity to demonstrate insight into whether in future steps might be taken to avoid anything of the kind recurring, and been able to demonstrate such insight, then the Panel might well have concluded that neither the future risks to patients nor the damage to the standing of the profession would have required striking off.

The Court allowed the appeal, quashed the decision to strike off and declined to remit the matter (which would involve a greater sanction than the period of suspension which N had already undergone as a result of the interim suspension order).

This case acts as yet another warning to those involved in hearings where registrants are unrepresented. Elusive concepts such as ‘misconduct’ and ‘impairment’ must be fully explained to registrants clearly by those involved. Those presenting such cases must ensure that their cross examination is abundantly fair and in a fashion which allows the real issues in the case be aired. The case commends an approach that involves presenting a case before the Panel, rather than prosecuting it.