England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
(SIR RICHARD TUCKER sitting as a Deputy High Court Judge)

		Royal Courts of Justice Strand London WC2A 2LL Friday 15 June 2001

1. LORD JUSTICE SEDLEY: This is an application for permission to appeal made by Miss Sam in person, with the assistance of Mr Okolowo, a solicitor who, although he has no formal right of audience, I have been glad to hear. It is certainly a troubling case.
2. Miss Sam is an experienced midwife who, in consequence of events which attended the birth and early death of a child in the hospital where she was working, was dismissed from her employment with the hospital. Subsequently she was found guilty of professional misconduct and cautioned by the United Kingdom Central Council for Nursing, Midwifery and Health ("UKCC"). Although this leaves Miss Sam free to find other employment as a midwife, I am told, and find no difficulty in accepting, that the combination of her age (she is now 58) and the caution have the effect that she cannot find other work. I do not therefore for a moment underestimate the seriousness of this matter to her.
3. She applied to Sir Richard Tucker, sitting as a judge of the Administrative Court on 30 November 2000, for permission to seek judicial review of the UKCC's decision against her. The charge was giving false information in respect of an investigation into the care of patient A (the infant) on the labour ward on 20/21 October 1996. It was alleged that the giving of this false information amounted to professional misconduct. This, exactly two years after the laying of the charge on 12 August 2000, the UKCC found proved in relation to four particulars which they set out:

(1) that at handover on 21 October to the day staff Miss Sam had falsely said that she was told that a monitor had not been changed when the clocks went back for winter;

(2) that Miss Sam had made a false allegation about Staff Midwife Furey to the effect that she had stood by without attempting to resuscitate the baby;

(3) that there had been a delay by the paediatric senior house officer in incubating the baby; and

(4) that the paediatric registrar had been late in arriving.

4. All these allegations had been made by Miss Sam in a letter and in a series of additional comments which she had sent, in her contention, as the coordinator who simply had a duty to record events. It is one matter of grievance that these allegations were not made in a formal witness statement; but that is not a satisfactory ground of challenge. The important point was not the form in which, or purpose for which, the allegations were made but whether they were true. What is more serious is that it was Miss Sam's case at the time of the dismissal proceedings against her that she had a duty to draw attention to shortcomings in the actions of colleagues, if she genuinely believed there had been such shortcomings, and that it was wrong to punish her for it.
5. That contention did not protect her from dismissal. The dismissal in 1997 was a matter of history, unfortunate history it is true, by the time the UKCC proceedings came on stream. Those proceedings had to be determined, as the council was advised, on the criminal standard of proof; proof beyond reasonable doubt. Mr Okolowo's submission has been that the tribunal acted irrationally in holding that there had been proof to that standard in the light in particular of the fact that that critical piece of evidence no longer existed.
6. In summary, this was a complicated delivery of a premature child whose mother had suffered a fall a few days earlier. The delivery occurred just after midnight but the cardiotopograph monitor ("CTG") had a timing problem and showed the wrong time. This was brought to Miss Sam's attention by a colleague. She advised that colleague to record it on the monitor and said that she would deal with it when there was time. At about 4 am Miss Sam went to the delivery room and corrected the time on the CTG machine. She then ran the graph paper to check that it was working. She noticed that it now showed a time of 3.27 am which she changed to 4 am. As a result the graph paper hanging from the machine showed both times. She left it there in order to discuss matters later with the colleague who had drawn the problem to her attention. When Miss Sam returned to the room, it was her evidence that the graph trace, with the two different times recorded on it, had been removed contrary to proper practice. She contended that it was Staff Midwife Furey who had removed it.
7. It is undoubtedly the case that the first of the particulars of false allegations made and found proved against Miss Sam related to this, but it was in the form that I have quoted. It was to that that the UKCC had to direct its attention. On an application for judicial review it seems to me impossible upon the material which I have been shown, and which I have read in the documents, to make out a contention that it was beyond the bounds of rationality for the UKCC to construe the evidence so as to find the charge proved beyond reasonable doubt. If this issue was to be raised, it would have had to be by way of a statutory appeal. Section 13 of the Nurses, Midwives and Health Visitors Act 1992 gave a right of appeal to the High Court in relation to:

"....a decision to remove him from the register or to remove or alter any entry in respect of him."

8. I do not decide conclusively at this stage whether the entry of a caution is the altering of an entry in relation to somebody on the register. Arguably it is. If so, there would have been a statutory appeal. If not, there was no statutory appeal, but still the court cannot do by way of judicial review what it can do by way of appeal where an appeal is provided for by law.
9. With the best will in the world, and my sympathies are with Miss Sam, I cannot see a basis on which this court, or the Administrative Court, could hold that there was an irrational decision on the evidence in this case. No doubt the decision could have gone either way but that is not good enough. It is for the UKCC and not this court to say which way the decision ultimately does go.
10. Miss Sam added to Mr Okolowo's submission the argument that the UKCC was both prosecutor and jury, as it always is in these cases, and this that is contrary to Article 6 of the Convention on Human Rights which requires an independent and impartial tribunal. The fact that the UKCC is one of a number of disciplinary bodies which by law is responsible for both bringing and deciding disciplinary cases, is not in itself determinative. What matters is whether it splits those two functions and ensures that they are insulated from one another. So long as the prosecuting function is discharged independently and not in collusion in any sense with the adjudicating limb of the council, there is no offence against the entitlement to an independent and impartial tribunal.
11. I see nothing in the present case, or indeed in other cases, which suggests to me that those two functions are somehow being confused so as to compromise the impartiality of the decision making body of the UKCC.
12. In all the circumstances, not without regret because I can see the force of the problem of being punished for drawing attention to the shortcomings of colleagues (a matter, however, of history and not directly related to this application) it seems to me that I have no option but to refuse permission to appeal in this case. I have also considered whether it would be appropriate to exercise the other power I have which is, rather than give permission to appeal, to give permission directly to seek judicial review - in other words to substitute my judgment for that of Sir Richard Tucker. But my judgment, like his, is that this is not an application with any realistic prospect of success. It would only involve Miss Sam in worry and, ultimately, in a very heavy bill of costs for the other side's legal expenses if I were to give her permission. I do not do so.