England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 May 2003

Mr Justice Newman :

REASONS FOR DECISION

1. At the conclusion of the hearing I stated that the penalty imposed upon the appellant (Marie Needham) by the Professional Conduct Committee of the Nursing and Midwifery Council (formerly the United Kingdom Central Council for Nursing, Midwifery and Health Visiting) should be quashed for reasons which would be delivered.
2. On the 13 May 2002 the appellant was found guilty of 6 charges of misconduct, following a hearing, which she attended, at which she called witnesses and was represented by counsel. She was removed from the register of nurses. She appealed to this court pursuant to section 12 of the Nurses, Midwives and Health Visitors Act 1997.
3. The grounds of appeal raised three issues:

i) whether the Committee's decision to remove her name from the Register was excessive;

ii) whether the Committee erred in failing to question her in respect of her current knowledge of drugs and drug administration;

iii) whether the committee failed to give adequate reasons for its decision.

4. The appellant was represented in this court by her husband. He applied to withdraw admissions of facts and admissions of misconduct which had been made in the course of the process leading to the Committee hearing and at the hearing itself. He presented the application on two principal grounds namely:

i) at all material times when the admissions had been made the appellant was acting under duress;

ii) that the facts to which she had admitted and misconduct she had accepted were in substance and content insufficient to found the charges.

5. I rejected the application for the following principal reasons:

i) the admissions had been made in circumstances where there was no evidence to support a finding of duress. Further, her husband had been privy to her admissions and obviously he had not concluded she was unfit to make them. Yet further, she had the benefit of counsel;

ii) the admissions had been repeated and consistent and her evidence to the Committee was clear, unequivocal and candid.

I concluded that she was attempting to withdraw the admissions because, rather than being cautioned, she had been removed from the register.

6. It follows that should any application be made to withdraw the admissions or any of them at the re-hearing, which this court now orders, it will amount to an abuse of the proceedings and the application should be rejected.
7. The charges related to a series of drug administration and patient case errors between 14 September 1999 and 27 January 2000 whilst the appellant was working as a staff nurse on a mixed surgical ward at Salisbury Ward, Salisbury Health Care NHS.
8. The case for the appellant on penalty centred upon the following facts.

i) Her good conduct prior to her arrival at Salisbury Ward.

ii) Her dependence on support from senior nursing staff in undertaking the more onerous responsibilities of being a nurse on an acute ward.

iii) The stress from which she was suffering at the material time which contributed to the commission of the acts of misconduct in question.

iv) Her conduct since 27 January 2000 and in particular her current conduct in connection with the administration of drugs in a home for adults with learning disabilities.

v) The evidence of an independent witness, Rosemary Hamilton, who had assessed her current level of conduct in connection with the administration of drugs.

vi) Testimonials from her present employer and others.

vii) Evidence that she had undergone treatment for her stress and stress management.

9. Counsel, Mr Gledhill, submitted that:

"We have put evidence forward today of her competence to practise in relation to the administration of medicines in her current area……we have shown that Marie Needham is competent at the core competences of drug administration."

He concluded by submitting:

"When you consider her fitness to practise today I respectfully ask all those matters to be taken into consideration. It is quite clear there might have been a time when she was not fit to practise, but in my submission that has now passed."

10. The Committee retired and returned after lengthy deliberation to state:

"First we considered whether to postpone judgment and we decided that postponement was not appropriate in your case.

The committee has decided to remove your name from the register with immediate effect.

In arriving at this decision the committee has listened carefully to the information put before the committee in mitigation and having taken this into account we consider that your fitness to practice on Part 12 of the Register is still impaired.

The reasons for removal are that you have manifestly failed to promote the interests of individual patients and clients and have also failed to justify public trust and confidence."

The Adequacy of the Reasons

11. Neither the 1997 Act nor the Nurses, Midwives and Health Visitors (Professional Conduct) Rules 1993 impose any obligation upon the Committee to give reasons for its decision, but it is not disputed that fairness required reasons to be given. As to what is required, certain cases in the sphere of professional conduct hearings, have established the following.

i) Whether sufficient reasons have been given will depend upon the particular circumstances of the case.

ii) That resort may be had to the transcript of the hearing (See Gupta v General Medical Council [2002] 1 WLR 1691), particularly where the transcript will reveal which evidence the committee accepted and which it rejected. (See Wickramsinghe v United Kingdom [1998] EHRLR 338)

iii) That a general explanation of the basis for the determination on the questions of serious professional misconduct and of penalty will normally be sufficient. (Selvanathan v GMC [2001] Lloyds' Rep Med 1)

iv) That the fact that an appellant had not been prejudiced by the failure to give reasons was irrelevant. (Brabazon-Drenning v United Kingdom Central Council [2001] HRLR 6)

v) That reasons need not elaborate nor be lengthy but should be such as to tell the parties in broad terms why the decision was reached.

12. In my judgment the critical question to which the evidence and submissions had been directed was whether, notwithstanding Marie Needham's abilities in the period with which the charges were concerned, including the part stress played in her conduct at the time, her present ability was not impaired. The evidence of Rosemary Hamilton, the testimonials and the other material relied upon went to support the central contention that her present ability was not impaired. Whether or not it went as far as to demonstrate the central contention to be correct was for the Committee. The evidence required the Committee to make a finding of fact in connection with her present ability. The Committee merely said "…..your fitness….is still impaired" and gave no reasons for the conclusion. The Committee therefore found against the appellant on the central issue but gave no reasons for having done so.
13. The Committee had the advantage of a Legal Assessor to whom it was entitled to turn for advice on the format and ambit to which the issues in the case gave rise. In cases where a number of issues have been raised the Committee should itself draw up a list of the specific issues to which it must give consideration and identify the material which has been presented to it in connection with each of those issues. The process of the hearing will provide an adequate opportunity for a list of the issues to be made and a sufficient record of the evidence or material going to those issues to be drawn up. Due and proper consideration to cases requires such a structured approach to the Committee's deliberations. Save in the most obvious and simple cases the Committee should adopt a structured approach to the consideration of issues. If it does so it will be able to state in broad terms why it has reached its decision. If in doubt the Legal Assessor's guidance can be sought on questions of structure and the presentation of the reasons but not, of course, on the reasons themselves. On this occasion a deliberate effort was made by the Committee to give the "reasons" for the penalty but it would appear from the bare statement as to the present impairment of the appellant, that the Committee considered it did not have to give any reasons why the evidence and material which had been presented to it in support of a conclusion that there was no present impairment had been considered inadequate to support the conclusion. The conclusion may have been driven by any number of considerations, for example, that it regarded the evidence as irrelevant, insufficiently compelling, or lacking in credibility. Whatever the reasons were for the Committee reaching the conclusion to which it came, the broad terms of them should have been stated.
14. It is noteworthy, as Mr Needham pointed out, that the appellant has a right to be restored to the register. Unless she knows why the Committee concluded she was "still impaired" she can neither assess the merits of the decision nor be in a position to present an application for restoration. She has been prejudiced. A committee when drawing up its reasons may find it helpful to have in mind the need which could arise for a Committee, at a later date, to review the case and thus when formulating its reasons does so by reference to the degree of illumination which a subsequent Committee might require in order to consider restoration to the register.
15. For the above reasons I concluded the penalty should be quashed. There should be a re-hearing before a new Committee where all matters of mitigation can be raised, including any matters of mitigation not raised before. For example, what degree of support was provided to her by senior nursing staff. So long as no point is raised which seeks to undermine or retract the admissions of fact and misconduct already recorded, it should be a full re-hearing. The Committee should consider all the issues raised and give reasons for its conclusions in broad terms sufficient to convey the nature of its appraisal of the evidence in connection with those issues.