England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE BEATSON)
[2009] EWHC 556 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		8th July 2009

Lord Justice Lloyd:

1. The issue of law on this appeal concerns the obligation to make all reasonable efforts, in accordance with the relevant rules, to serve notice of a disciplinary hearing on the person whose conduct is the subject of the hearing, as a condition of the hearing proceeding in the absence of the respondent.
2. The point arises in relation to disciplinary proceedings on the part of the Nursing and Midwifery Council in relation to the respondent to this appeal, Mr Jatta, who is, subject to the outcome of the proceedings, a nurse registered with the council.
3. The Conduct and Competence Committee of the council considered a disciplinary complaint against him in proceedings of which, in a general way, he was notified by letter dated 28 April 2008. A hearing took place on 26 August 2008 in the absence of Mr Jatta. The panel concluded that his fitness to practice was impaired and that the appropriate sanction was that he be struck off the register. Mr Jatta appealed to the Administrative Court. On that appeal Beatson J rejected two of the grounds of appeal, but he allowed the appeal on the basis that the conditions for proceeding in the absence of Mr Jatta had not been satisfied. His judgment is available at [2009] EWHC 556 Admin and was given on 11 March 2009.
4. The judge ordered that the matter be remitted to a new hearing, but he also gave permission to appeal. Strictly speaking, since the appeal is a second appeal, it was not within his powers to give permission (see CPR 22.13) but I have no doubt that, if he had limited himself (as he should, perhaps) to an expression of the view that permission ought to be given, the council would have been given permission to appeal on the submission of the papers to this court.
5. In giving permission to appeal the judge recognised, at least implicitly, the importance of the point as regards the practice of the Nursing and Midwifery Council. More generally, rules similar to those which apply in relation to this council exist in the disciplinary regimes of other such bodies, including the General Medical Council, the General Dental Council and the Health Professions Council. Similar considerations would be likely to apply in those cases, although Ms McDonald for the appellant council told us that it may be that there are more, and a higher proportion of, absentees, so to speak, in cases concerning this council than there would be in others.
6. As the judge said, as regards the underlying facts, the case is very unfortunate, difficult and tragic. Mr Jatta had been convicted at Didcot Magistrates' Court of seven offences of making false or misleading representations concerning medicinal products contrary to section 15 of the Theft Act. The offences were committed in order to obtain medicinal products for Mr Jatta's uncle, who was dying of prostate cancer in the Gambia, the products not being obtainable there. The magistrates passed a community sentence. There were several substantial mitigating factors as regards the circumstances of the offences, and a record not just of previous good professional conduct over a substantial period but of strong references in his favour from a doctor at one of the surgeries where he had worked. None of that, however, is relevant to the issue of law in the present appeal. If the matter stands, as ordered by the judge, remitted to a further hearing, Mr Jatta, who does not contest the charge as such, will have the opportunity to present a plea in mitigation by reference to the testimonials and references and to his own evidence. That is what is at stake for him: an opportunity to save his professional career from the disaster of striking off as opposed to some lesser sanction. The importance of that is all the greater, considering that, except in a case in which new evidence becomes available after the order has been made, no application for the restoration of a person who has been the subject of a striking off order to the register can be made for five years after the date of the order.
7. From the appellant council's point of view, the question is: what has to be done in order to be able to proceed safely with the hearing if the respondent does not attend? That is of great practical significance. Their legal assessors have to know how to advise panels considering matters of this kind as to the circumstances in which they can properly proceed in the absence of a respondent.
8. Mr Jatta was registered under the Nursing and Midwifery Council (Education, Registration and Registration Appeals) Rules 2004, rule 4 of which specifies what information must be on the register, which includes an address for correspondence. Under rule 16(1) of those rules the registrant is required to notify the registrar in writing within one month of any change in her name and address. The rules in relation to this body consistently, for perhaps obvious reasons, use the female rather than the male, but they apply in exactly the same way, of course, to male nurses such as Mr Jatta.
9. Disciplinary matters are dealt with under the Nursing and Midwifery Council (Fitness to Practice) Rules 2004, themselves made pursuant to the Nursing and Midwifery Order 2001. Under the fitness to practice rules, so far as relevant, allegations may be referred to the Conduct and Competence Committee; and, if they are so referred, that committee sends a notice of referral to the registrant giving details of the allegation and, among other things, requiring the registrant to inform the committee within 28 days that she would like the allegations to be considered at a hearing. The range of sanctions that may be imposed at such a hearing is defined by rule 29 of the 2001 order. There are four: striking off; suspension for a period of up to a year; conditions of practice, which may be imposed for up to three years; and administering a caution, which is noted on the register for up to five years.
10. Notice of the hearing is governed by rule 11 of the fitness to practice rules. Subrule (1) is as follows:

"Where a hearing is to be held in accordance with rule 10(2), the Conduct and Competence Committee or Health Committee shall send a notice of hearing to the registrant."

11. It must be sent no later than 28 days before the date fixed for the hearing. It must inform the registrant of the date, time and venue of the hearing, of the allegation, of the right to attend and be represented at the hearing, of the Committee's power to proceed with the hearing in her absence and of other matters, and must require the registrant to inform the Council within 14 days whether she intends to attend and /or be represented at the hearing.
12. Part 5 of these rules is headed "Procedure at Meetings". I need not refer to any of the rules in this part other than rule 21(2). I read the whole of that:

"Where the registrant fails to attend and is not represented at the hearing, the Committee -

(a) shall require the presenter to adduce evidence that all reasonable efforts have been made, in accordance with these Rules, to serve the notice of hearing on the registrant;


(b) may, where the Committee is satisfied that the notice of hearing has been duly served, direct that the allegation should be heard and determined notwithstanding the absence of the registrant; or


(c) may adjourn the hearing and issue directions."

A somewhat similar provision to rule 21(2)(a) applies as regards hearings to consider interim orders: see rule 8(6)(a).

13. The provision of the rules dealing with service of documents is rule 34. Subrule (1) governs the service of notices of hearings. It is in the following terms, so far as relevant:

"Any notice of hearing required to be served upon the registrant shall be delivered by sending it by a postal service or other delivery service in which delivery or receipt is recorded to, or by leaving it at --

(a) where the practitioner is represented by a solicitor, the solicitor's practising address;

(b) where the practitioner is represented by a professional body or trade union, at the business address of that professional body or trade union; or

(c) in any other case --

(i) her address in the register, or


(ii) where this differs, and it appears more likely to reach her at her last known address, the registrant's last known address."

Subrule (3) deals with proof of service of notice, and subrule (4) governs the time of service, which is to be taken as the day after sending (if a delivery service is used) or the day on which the notice was left at an address if that method is used.

14. I return to the facts.
15. On 28 April 2008 notice of the referral to the Conduct and Competence Committee was sent to Mr Jatta. It required a response by 28 May and said that the panel would consider the matter on 12 June. It stated that if a hearing was required it was likely to be held in August, September or October 2008. At the end of the letter it told Mr Jatta that he should notify the council of any change of address, since, if the council was unable to contact him, the proceedings could continue without him knowing or being able to respond to the allegations.
16. On 13 May Mr Jatta replied requesting that a hearing be held. He explained that he was due to travel to Thailand on 16 May to carry out field research in connection with an MSc that he was undertaking and was due to return on 15 July when he would have to write his dissertation for the MSc which was due in on 15 August: "This means that I will be available to attend the hearing at the earlier date in September stated in your letter". He also said at the end of his letter that, as he was now leaving for Thailand, the best contact for him from 16 May to 15 July was by email at an address which he gave. In reply by email he was told that the council only sent correspondence by mail, not by email. Therefore, due to confidentiality, he was asked to supply them with a contact address to which they can send all correspondence. His response to that was that he was unable to supply them with an appropriate contact address until his return to the UK on 16 July, and he made it clear that his address in Didcot, which was his registered address, was a flat that he had had to give up on 15 May when he went to Thailand, and he said this:

"As you are unable to send my communication to me by email I have no alternative but to ask that all communication to me be retained at your office until my return, upon which time I will contact you with an appropriate contact address."

17. He has told us in his submissions today that he assumed, in the absence of any comment on his statement that he would be available for a hearing in September, that that request had been granted or would be granted. He contends that it was the council's duty to respond if they were not going to grant his request, or at least that the absence of such a response should have influenced the panel's decision whether to proceed on 26 August. That was the last that the council heard from him before the hearing took place.
18. On 7 July a letter was sent to his registered address saying that there would be a hearing but not constituting a formal notice of the hearing. The formal notice of hearing was dated 11 July but not, in fact, dispatched until 24 July and was addressed to him and sent to his registered address in Didcot. It is not in dispute that the letter complied with the rules as regards the required content of the hearing, nor that it was in fact sent to his registered address. Posting of the letter was duly proved; it was sent recorded delivery and in that form was returned undelivered, but it seems that it was also sent first class, and that copy no doubt languished for some time at the address in Didcot.
19. Mr Jatta returned to the United Kingdom as planned in July but did not notify the council of a new address. He said to us, as he had, I think, to the learned judge below, that this was because he was getting on with his dissertation and because of his assumption that the hearing would not take place before September. He was therefore unaware of, and did not attend, the hearing on 26 August.
20. We have the transcript of that hearing. We can see from this that the panel was made aware of all the relevant communications and indeed insisted on seeing them all, and was given proper advice by their legal assessor. The transcript reports that they withdrew for a period of forty minutes or so to consider what to do as regards the absence of Mr Jatta. They decided to proceed. Their reasons for that decision are recorded in the transcript as being given by the chairman as follows:

"We are satisfied that all reasonable efforts have been made to serve the notice of hearing on the registrant in accordance with the rules. The registrant has a duty to keep the NMC informed of his registered address and we are satisfied that even if he could no longer be contacted at his registered address, he has had every opportunity to find out the date of this hearing and has chosen not to do so. The allegations against the registrant arise out of a criminal conviction on 5 October 2007 for offences of dishonesty relating to obtaining prescription drugs by deception on numerous occasions. In view of the nature and seriousness of the allegations and the correspondence to which we have referred we have concluded that it is in the interests of justice for the hearing to proceed today."

21. It is evident from the transcript that the panel took great care over this preliminary question. They came to the conclusion to which I have already referred, that the charge was made out and the appropriate sanction was striking off.
22. By coincidence, on the very next day, 27 August, Mr Jatta sent an email to the council giving what was by then his temporary address and asking for communications to be sent to that address, unaware of the hearing having taken place already. On 28 August notice of the decision was sent to him at that address.
23. He appealed against that decision, as he is entitled to do under rule 38 of the 2001 order, representing himself. As I have mentioned, he advanced several grounds of appeal but Beatson J upheld only one of them. The judge considered the respective submissions, including Mr Jatta's point that he was hoping for a September hearing and for notice to be given to him by email if it was not to be a September hearing, and his contention that he should have been sent at least a short email to say that the letter was to be sent to him for a hearing on a given date and inviting him to contact the council or to give them a more relevant address.
24. Ms McDonald, on the other hand, for the council had submitted that Mr Jatta could not assume that the ball was in the council's court and that he need not contact them. At paragraph 24 of his judgment the learned judge started his review as follows:

"I have not found this case an easy case. On the one hand, the mechanical application of the rules, taken together with the careful consideration by the panel, tends to suggest that there was no procedural irregularity. On the other hand, the circumstances of this case are highly unusual. Although the appellant said he would inform the Council, there had been some communication to him by the Council using e-mail, and the Council knew that he was no longer at the address and that he would be contactable on the e-mail address. No attempt was made to contact him. It was accepted by Mrs Macdonald that in this case the appellant was engaging with the Committee."

25. Then, passing over a short passage from the judgment, he went on to hold, in effect, that, despite the first appearance to which he refers, there was a procedural irregularity that vitiated the decision to proceed in Mr Jatta's absence. The crucial passage in the judgment is paragraph 25, as follows:

"I have concluded, not without hesitation, that in the particular circumstances of this case, where the appellant was abroad for a substantial period, where it was accepted that he was engaging the Committee, where he had been in touch and provided an e-mail address, where the Council knew that he was no longer at the registered address and there was no point in providing another address because he was out of the country, and where, as he was subject to an interim order and could not practice, the omission to send a short e-mail to him telling him that there was a communication for him to pick up was a matter that vitiated what happened thereafter. There is no criticism of the panel itself. But notwithstanding the obligation of the registrant to provide an address, the context in which the events happened before the hearing, in my judgment, required the case officer to send an e-mail informing the appellant of the existence of the letter to be collected."

26. He went on to differentiate the case from what might be regarded as a potentially more normal case by saying that this case was highly unusual and that, unlike the more common situation of a registrant who does not engage or ceases to engage, "here the appellant was engaging and there was no attempt made to see whether he had ceased to engage". That was the ground on which he allowed the appeal.
27. The judge had read and summarised earlier in his judgment the relevant rules, but he did not in terms apply them to the facts he was considering at that stage. As I have quoted, he expressly did not criticise the panel and he referred to their careful consideration. Evidently his reasoning was not an improper exercise of the discretion under rule 21. It was that rule 21(2)(a) had not been satisfied as a matter of law. Since that rule refers to service of the notice of the hearing in accordance with the rules, and what he found to have been omitted was not in itself notice of the hearing, still less anything required by the rules, or even permitted by the rules, it is not easy to see how he could have concluded that rule 21(2)(a) was not satisfied.
28. Ms McDonald, for the council, criticises the judge for the comment that Mr Jatta was engaging, and as to the absence of any attempt to see whether he had ceased to engage. As a matter of fact, he had engaged in May by his response on 13 May and by his email on 22 May. He had stated his wish for a hearing but that was the last that the council had heard of him. Notice of hearing was not sent out until after the date when he was due to return to the United Kingdom, and the hearing was fixed for a date after the deadline for the submission of his dissertation. He had in fact returned and had not made it a priority to get back in touch with the council. No doubt his dissertation was his first priority at that stage, but a quick email, such as he sent on 27 August, could have been sent and could have been expected by the council soon after he had returned to this country in July.
29. The council makes the point that they will not send a document as sensitive as full notice of a hearing by email due to concerns of confidentiality. That may be an entirely proper attitude. It could nevertheless have sent an email alerting Mr Jatta to the hearing date once it had been fixed, or to the fact that a communication, namely the notice of hearing, was intended to reach him, or both, but the omission to send such a communication to him is not a failure to do something in accordance with the rules. What the panel has to require under rule 21(2)(a) is evidence that all reasonable efforts have been made in accordance with these rules to serve the notice of hearing on the registrant and in turn, under rule 21(2)(b), it must be satisfied that the notice of hearing has been duly served. The rules do not provide for sending anything by email; they require a notice of hearing to be served by post or other delivery service or left at a relevant address. The only available address was the registered address, albeit that it was known not to be, as it were, a useful address for Mr Jatta, since he was no longer there. In my judgment, to take the additional step which the judge said should have been taken cannot be described as an effort to be made in accordance with the rules to serve the notice of hearing. It seems to me that the evidence given in accordance with rule 21(2)(a) could and should have satisfied the committee, as it in fact did, that the notice of hearing had been duly served so that they could, if they thought fit, direct that the hearing proceed in the absence of the registrant. Of course they had a choice; they were aware of it and they were conscientious about exercising it. They were aware of the great importance of the matter from Mr Jatta's point of view, as well as the importance from the point of view of the council and the public. They could have adjourned and required that an email be sent to Mr Jatta to his known contact email address, which might have led, and in fact would no doubt have led, to his attending a hearing when refixed, but they did not do so and it does not seem to me that they can properly be criticised for that failure.
30. Mr Jatta has addressed the court today clearly, courteously and eloquently, making it clear that he does not contest the charge and only wishes for an opportunity to present argument and material to the committee relevant to the question: what should be the appropriate sanction? He has carried on the profession of a nurse for a good many years in such a way as to gain praise from doctors and gratitude from patients. Moreover, there are significant and unusual mitigating circumstances which he would wish to rely on and to deploy fully to the committee as regards the offences which led to the disciplinary proceedings. He argues, understandably, that sending the notice of hearing to the registered address was what he called a mechanical process of no real value in allowing him to continue to engage with the process, and that it would have been the work of a moment for the case officer to send him an email to tell him of the hearing date and to invite him either to provide an address for service or to contact the council in order to collect the notice and associated material. He argues that the council was at fault, first in not responding to the implicit request for a hearing not before September; secondly, not alerting him about the date of the hearing once it had been fixed by email; and thirdly, for deciding to go ahead in his absence.
31. It is a fair comment that the process of giving notice was followed in what could be described as a mechanical fashion, but in the absence of a notified fresh address the council was bound to send notice to the old registered address and could not be thwarted in its desire to take or continue these disciplinary proceedings by knowing that the only address they had was an address at which the document would not come to his attention. I do not accept that he was reasonable in assuming that his indication of being available for a September hearing would lead, in the absence of an indication otherwise from the council, to a hearing not before that month. The date fixed of 26 August was somewhat after the date for the submission of his dissertation so that it need not have interfered with his work in that respect, and the notice of hearing, although dated 11 July, was not sent out until the 24^th, some time after his expected return on 15 or 16 July. He could therefore have given them a new address by then, as he said in his 22 May email he would, and they could reasonably expect that he would have done so if he wished to continue to take part in the proceedings.
32. I do see force in his comment that the case officer could and perhaps should on 24 July have sent an email telling him of the date and inviting him to provide an address or to collect the material. However, that is not a requirement of the rules, and failure to do it cannot lead it to the committee not being satisfied that the notice of hearing had been duly served -- that is to say, served in accordance with the rules. While I can understand why the judge had sympathy for Mr Jatta's situation in general, as I do, I do not regard the case procedurally as being particularly unusual. As a matter of law, it seems to me that the judge's added requirement is one that cannot be found in the rules as to service of a notice of the hearing, and accordingly, with respect, I consider that the judge was wrong to hold that it was not open to the committee to decide under rule 21(2)(b) that the hearing could proceed in the absence of Mr Jatta. Nor does it seem to me that the committee's decision to proceed as a matter of discretion under rule 21(2(b), rather than to adjourn under rule 21(2)(c), can be said to have been unlawful.
33. Beatson J did not put his decision on that basis and, although Mr Jatta argued it, it seems to me that the committee acted properly, having been correctly advised on the point.
34. I would therefore allow the council's appeal, with some regret as to Mr Jatta's position, but with no doubt as to the correct legal decision.

Sir Simon Tuckey:

35. I agree.

Lord Justice Maurice Kay:

36. I too would like to pay tribute to Mr Jatta's dignified, courteous and restrained address to this court this morning; but, for the reasons given by Lloyd LJ with which I agree, this appeal must be allowed.

Order: Appeal allowed