England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		11th June 2008

1. MR JUSTICE LLOYD JONES: This is an appeal by Mr Eric Brian Phillips against the decision of the Conduct and Competence Committee of the Nursing and Midwifery Council dated 23rd May 2007. That decision was made following a three day hearing. The Committee found allegations of misconduct by Mr Phillips proved, concluded that his fitness to practise was impaired and made an order striking him off the Nursing Register.
2. Mr Phillips had been a registered nurse for some 15 years. He had been employed latterly by Surrey and Borders Partnership NHS Trust as a G-grade community psychiatric nurse in Farnham and Godalming Community Mental Health Team. He was described by Mrs Joan Underwood, his manager at the relevant times, as a very hard working and committed nurse. She said in her evidence to the Committee that he was always keen to help out his colleagues in a busy team and he was highly valued by his clients and his carers.
3. One of his patients was a lady to whom I shall refer as Mrs R. I have made an order prohibiting the publication or disclosure of any information which might tend to identify Mrs R. Mr Phillips was, at various times, her community psychiatric nurse (CPN). The evidence of Dr Hassan, a consultant psychiatrist, who had looked after Mrs R since September 2000, was that she suffered from bi-polar affective disorder with stress induced hypomanic episodes. Her symptoms include inappropriate behaviour, sexual disinhibition, aggression, suspicion and verbosity. She had a good understanding of her condition. Her sensitivity could develop into exaggerated fear and paranoid thinking. It was Mr Phillip's relationship with Mrs R, and his conduct towards her in June and July 2004, which gave rise to the proceedings against him. They centred upon his attendance at the Glastonbury Festival with Mrs R between 25th and 27th June 2004 and the matters which occurred while they were there.
4. Mr Phillips's case centres on the fact that when invited by Mrs R to go to Glastonbury with her, he ceased to be Mrs R's community psychiatric nurse in order to be able to accept her invitation. Investigations by his employer, which included two interviews with Mr Phillips, led to a disciplinary hearing on 10th January 2005, which resulted in his summary dismissal for gross misconduct. Mr Phillips's case was referred in May 2005 to the Nursing and Midwifery Council, ("the NMC"), for investigation. On 10th January 2006 Mr Phillips was notified that his case had been referred to the Conduct and Competence Committee of the Nursing and Midwifery Council.
5. It is of some significance, in the light of the grounds advanced upon this appeal, that that letter of notification set out in detail the particulars of the charges against Mr Phillips. He was then informed by a letter dated 15th February 2006 that the Committee had decided that there should be a hearing into the allegations against him. The hearing took place on 29th and 30th March and 29th May 2007. At the conclusion of the hearing, the Committee announced its decision. That decision is recorded, at least in part, in a letter dated 29th May 2007:

"Conduct and Competence Committee

Notice of decisions taken at your panel hearing

I am writing on behalf of the Chair of the Conduct and Competence Committee to inform you of the decisions taken by the panel at its hearing of your case on 29-30 March 2007 and 23 May 2007.

Facts of allegations found proved as follows:

Allegations proved: 1a(i, ii, iii, iv, v, vi, vii) and 2a(i, ii).

Reasons

In relation to charge 1(a)(i), we are satisfied on the basis of his own admissions in the course of the investigatory interview on 15 November 2004 and the disciplinary hearing on 10 January 2005 (as set out in exhibits 9 and 10) that on 18 June 2004 Mr Phillips ceased to act as Mrs R's CPN and care co-ordinator and transferred these roles to Vicky Smith in order to be able to accept Mrs R's offer of a ticket to Glastonbury.

In relation to charge 1(a)(ii), we are satisfied on the basis of the evidence of Joan Underwood, whom we regarded as an honest and reliable witness, and on his own admission at the investigatory interview on 3 September 2004, as set out in exhibit 7, that Mr Phillips acted against the advice of Mrs Underwood.

In relation to charge 1(a)(iii), we are satisfied on the basis of his own admissions in the course of the investigatory interviews on 3 September 2004 and 15 November 2004, and the disciplinary hearing on 10 January 2005, (as set out in exhibits 7, 9 and 10), that Mr Phillips attended the Glastonbury Festival with Mrs R on the dates alleged.

In relation to charge 1(a)(iv), we are satisfied on the basis of his own admissions in the course of the investigatory interview on 15 November 2004 and the disciplinary hearing on 10 January 2005, (as set out in exhibits 9 and 10), that Mr Phillips shared a tent with Mrs R at the Glastonbury Festival.

In relation to charge 1(a)(v), we are satisfied on the basis of his own admissions in the course of the investigatory interview on 15 November 2004 and the disciplinary hearing on 10 January 2005, (as set out in exhibits 9 and 10), that Mr Phillips shared with Mrs R two sleeping bags that had been zipped together while he was naked and she was fully clothed.

In relation to charge 1(a)(vi), we are satisfied on the basis of his own admission in the course of the disciplinary hearing on 10 January 2005, (as set out in Exhibit 10), that while naked in the sleeping bags with Mrs R he asked her to kiss him.

In relation to charge 1(a)(vii) we are satisfied on the basis of his own admissions in the course of the investigatory interview on 15 November 2004 and disciplinary hearing on 10 January 2005, (as set out in exhibits 9 and 10), that he acted as set out in (v) and (vi) despite having observed signs that Mrs R was relapsing into mental illness and being aware that sexual disinhibition was a symptom of her mental illness.

We are further satisfied on the basis of the evidence we have heard, and taking account of established nursing practice and principles, that the only appropriate professional relationship between a practitioner and a client is one that focuses on the needs of the client.

We are satisfied on the basis of the evidence of Joan Underwood and Vicky Smith that Mrs R remained a client of Mr Phillips, in his capacity as a member of the CMHT, even after he had relinquished direct responsibility as her CPN and care co-ordinator.

We are satisfied that on his own admission Mr Phillips took the initiative in seeking to develop a personal relationship with Mrs R when he was fully aware of her medical history as a vulnerable patient.

In light of all the above, we are satisfied that Mr Phillips failed to respect Mrs R as an individual.

In relation to charge 2(a)(i), we are satisfied on the evidence of Mrs Underwood that Mr Phillips failed to report to her that he had been to the Glastonbury Festival with Mrs R and had observed signs that she was relapsing into mental illness.

In relation to charge 2(a)(ii) we are satisfied on the evidence of Steve Melton, whom we found to be an honest and reliable witness, that the facts set out in this charge have been proved.

Misconduct of allegations found proved as follows:

Allegations: 1(i, ii, iii, iv, v, vi, vii) and 2(i, ii)

That your fitness to practice is impaired

Reasons

The panel has taken into account the NMC's definition of 'fitness to practise'. The charges of misconduct of which Mr Phillips has been found guilty are of a very serious nature and we are satisfied that, pursuant to Article 22(a)(i) of the 2001 Order, they amount to impairment of his fitness to practise. Furthermore, the lack of insight he displayed when he appeared before the panel regarding the nature and seriousness of his conduct convinces us that his fitness to practise remains impaired,

Sanction

To make a striking-off order.

Reasons

The panel has considered the question of sanction in accordance with the indicative sanctions guidance provided by the NMC. We first considered whether this was a case where we might take no further action, but we were satisfied that it would not be in the public interest to impose no sanction.

We next considered the possibility of imposing a caution. While we noted that Mr Phillips' previous history as a nurse was commended by Mrs Underwood, we are satisfied that he has displayed no insight into his failings nor offered any expression of regret regarding the matters that form the basis of these charges. Furthermore, while his conduct related to one patient, his actions were wholly deliberate and compounded by his lack of co-operation with his colleagues. The panel has received no relevant or appropriate references or testimonials on his behalf.

While we note that Mr Phillips maintains that his actions were driven by love for Mrs R, we are satisfied that that does not amount to proper mitigation in a case such as this. Indeed, we repeat that we attach particular weight to his lack of insight regarding the nature and seriousness of his conduct. In all the circumstances the panel is satisfied that a caution would be neither appropriate nor sufficient in this case. We are further satisfied that this is not a case where a conditions of practice order would be appropriate or practicable.

We have concluded that Mr Phillips's conduct was fundamentally incompatible with his continuing to be a registered nurse, and so we are satisfied that a suspension order would not be a sufficient sanction. In his conduct over the material period Mr Phillips was guilty of a serious departure from the relevant standards as set out in the NMC's code of professional conduct. Furthermore we are satisfied that the public's confidence in the council would inevitably be undermined if he were not to be struck off.

In all the circumstances we are satisfied that a striking off order is the appropriate and proportionate sanction.

Start date of the order

The order will come into effect 28 days after the posting date of this letter.

You may not apply for restoration until five years after the date that this decision had taken effect.

The panel decided that it was necessary to make an interim suspension order until the final order can come into effect.

The period of the interim order is 18 months. If you have not lodged an appeal by the end of the appeal period, the interim order will lapse and be replaced by the final order. On the other hand, if you do appeal, the interim order will continue to run until the end of the appeal process.

If the interim order continues to run because you have lodged an appeal, it must be reviewed before the end of six months and every three months after that.

Reasons

The panel's reasons for making an interim suspension order are:

For the protection of the public and in the public interest.

Marking the register

The striking-off order will show against your entry in the register. Anyone who enquires about your registration will be told about the order.

Appeal

Under Articles 29(9) and 38 of the Nursing and Midwifery Order 2001, you have 28 days to appeal against the order. If you want to appeal, you must apply to the appropriate court for the order to be revoked or changed. The appropriate court depends on the country of your registered address.

• the Court of Session in Scotland; (registered address in Scotland)

• the High Court of Justice in Northern Ireland; (registered address in Northern Ireland)

• the High Court of Justice in England and Wales; (registered address in England, Wales or any other non-UK country)

The NMC cannot help you with your appeal. If you want help in making an application to the court, you should consult your professional organisation or union. Alternatively, you should consult your solicitor, or ask for help from your local Citizens Advice Bureau or free law centre.

Council for Healthcare Regulatory Excellence (CHRE)

The CHRE is a body established by the NHS Reform and Health Care Professions Act 2002. It works with all the health professions' regulators to promote the interests of patients and members of the public. The NMC must report the outcome of all Conduct and Competence Committee cases to the CHRE and accordingly will report the outcome of your case.

Legal proceedings

You will be liable to proceedings under Article 44 of the Nursing and Midwifery Order 2001 if you:

• falsely represent yourself to be a registrant or

• use a registered nursing or midwifery title or

• allow anyone else to refer to you as a registrant.

You should now complete the enclosed form and return it in the envelope provided.

If you have any questions about this letter, please contact your case officer. Their details appear at the top of this letter."

6. In addition, that letter should have included certain further reasoning provided by the tribunal in support of its decision on Day 3 of the hearing. In particular the Committee said this with regard to its reasons for finding misconduct:

"The Committee finds that in relation to charge 1b and charge 2b, the Registrant is guilty of misconduct.

And the reasons for the Committee finding misconduct are as follows:

For the avoidance of doubt we repeat that we are satisfied that Mrs R was a client according to the definition set out in para 2 NMC's publication Practitioner-client relationship and the prevention of abuse. That states that the term refers to all groups and individuals who have direct or indirect contact with Registered Nurses in a professional capacity.

In relation to charge 1b the relevant NMC Code of Professional Conduct is clear regarding the issue of relationships between Registrants and clients. Para 2.3 states as follows:

'You must, at all times, maintain appropriate professional boundaries in the relationships you have with patients and clients. You must ensure that all aspects of the relationship focus exclusively upon the needs of the patient or client.'

Further guidance is provided in para 8 of the booklet Practitioner-client relationships and the prevention of abuse referred to above. We feel it is appropriate to set out the paragraph in full:

'Boundaries define the limits of behaviour which allow a client and a practitioner to engage safely in a therapeutic caring relationship. These boundaries are based upon trust, respect and the appropriate use of power. The relationship between registered nurses...and their clients is a therapeutic caring relationship that must focus solely upon meeting the health or care needs of the client. It is not established to build personal or social contacts for practitioners. Moving the focus of care away from meeting the client's needs towards meeting the practitioner's own needs is an unacceptable abuse of power.'

Mindful of the NMC guidance, as set out above, we are satisfied that Mr Phillips failed to maintain appropriate boundaries and failed to respect Mrs R as an individual and thereby breached the provisions of the Code of Conduct. He is, therefore, guilty of misconduct."

The passage continues:

"In relation to charge 2b, we would refer to the content of para 4.3 of the relevant NMC Code of Professional Conduct.

'You must communicate effectively and share your knowledge, skill and expertise with other members of the team as required for the benefit of patients and clients.'

We would also refer to the terms of para 8 of the Code, the substantive provision of which is as follows:

'As a registered nurse...you must act to identify and minimise the risk to patients and clients.'"

The Committee continued:

"Mr Phillips failed to co-operate with other members of the CMHT and minimise risk to Mrs R in that he failed to communicate with them regarding the full nature of her deteriorating mental health conditions. Mr Phillips has thereby failed to act in accordance with the required standards expected of a Registered Nurse as set out in the NMC's Code of Conduct. He is, therefore, guilty of misconduct."

7. In addition, the Committee, in announcing the action they proposed to take, said this:

"The Panel finds that in relation to Mr Eric Brian Phillips that his fitness to practise is impaired. The reason for the Panel reaching this decision is the Panel has taken into account the NMC's definition of fitness to practise. The charges of misconduct of which Mr Phillips has been found guilty are of a very serious nature and we are satisfied that in pursuance of article 22(a)(i) of the 2001 Order they amount to impairment of his fitness to practise. Furthermore, the lack of insight he displayed when he appeared before the Panel regarding the nature and the seriousness of his conduct convinces us that his fitness to practise remains impaired."

It then went on to consider what sanction to impose.

8. Mr Phillips now appeals against the Committee's decision pursuant to Articles 29(9) and 38, Nursing and Midwifery Order 2001. Before turning to the grounds of appeal, it is convenient to refer to the role of this court on such an appeal. CPR Part 52 applies to the appeal. Accordingly, the appeal can be allowed only if one of the criteria set out in Part 52.11(3) is made out, namely that the Committee's decision was wrong or unjust because of a serious procedural or other irregularity in the proceedings.
9. It is the function of this court on such an appeal to conduct a rehearing, although such a rehearing is usually, as has been the case here, conducted on the basis of a transcript of the hearing below. As a result, the appeal court has to acknowledge that the first instance body enjoys an advantage which the appeal court does not have, because it was in a better position to judge the credibility and reliability of the evidence given by the witnesses. In cases where the credibility and reliability of witnesses are substantially in issue the appeal body will be cautious in interfering with decisions of fact taken below. Nevertheless, the court has a jurisdiction to do so and in an appropriate case will exercise it. (See Gupta v General Medical Council [2002] 1 WLR 1691).
10. Furthermore, it is highly material that the first instance tribunal includes members of the profession in question. In this case the Committee included two nurses, one of whom was a specialist psychiatric nurse. Accordingly, the appellate body will accord an appropriate respect to the judgment of the first instance body, in particular with regard to the question of whether an individual's conduct constitutes professional misconduct, and with regard to the measures necessary to maintain professional standards and to provide adequate protection for the public. Nevertheless, the High Court will correct material errors of fact and of law and will exercise a judgment, albeit a secondary judgment, as to the application of the principles to the facts of the case. (See Ghosh v General Medical Council [2001] 1 WLR 1915, per Lord Millett at paragraph 34; Raschid v General Medical Council [2007] 1 WLR 1460, per Laws LJ at paragraphs 19 and 20).
11. The grounds of appeal relied on by Mr Phillips can be summarised under the following heads:

(1) criticism of the conclusion that Mrs R was a patient of the team at the relevant time;

(2) criticism of the admission of exhibit 10 into evidence. Exhibit 10 is the note of a disciplinary hearing held on 10th January 2005 by the Trust;

(3) criticisms of the Committee's findings of fact;

(4) criticism of the extent of the investigation undertaken by the NMC;

(5) a complaint of delay on the part of the NMC in pursuing the proceedings; and

(6) criticisms of the Committee's finding of misconduct and impairment of fitness to practise.

I shall consider each of these in turn.

12. First, the criticism of the finding that Mrs R was a patient of the team. The Committee's finding in this regard is at pages 246-247 of the bundle:

"We are satisfied on the basis of the evidence of Joan Underwood and Vicky Smith that Mrs R remained a client of Mr Phillips in his capacity as a member of the CMHT, even after he had relinquished direct responsibility as her CPN and care co-ordinator."

13. Mr Phillips, who has represented himself on the hearing of this appeal, and who has made his submissions efficiently and with economy, submits in this regard that the boundary between current and ex-client is important. He makes the submission that Mrs R was not his client.
14. The Committee came to its conclusion that Mrs R remained the client of Mr Phillips, even after he had relinquished direct responsibility as community psychiatric nurse and care co-ordinator for her. It came to this conclusion on the basis of the evidence of Mrs Joan Underwood, Mr Phillips's manager, and Vicky Smith, a psychiatric nurse who assumed the responsibility of CPN after it was relinquished by Mr Phillips.
15. In the course of the appeal, I have been referred to the evidence of Mrs Underwood, which appears at pages 137 and 147-148, and to that of Vicky Smith, which appears at page 169. Mr Phillips's submission is that Mrs R was clearly not his client because she was not on his case load and they had no further contact in a professional capacity once he had relinquished the role of CPN. He submits that simply being a client of the Trust did not make her a client of his. However, there was, to my mind, clear evidence before the Committee on the basis of which it was open to the Committee to conclude that Mrs R was a client of the team of which Mr Phillips was a member, and therefore a client of Mr Phillips.
16. In this regard I refer to the evidence of Mrs Underwood, which is given at pages 123, 144 and 145 of the transcript, and the evidence of Mrs Smith at page 169. This evidence is clearly supportive of the conclusion drawn by the Committee at pages 246-247 which I have already set out. Moreover, it is clear from the contemporaneous medical notes included in the papers before me that Mrs R was clearly an ongoing client of the team at the relevant time.
17. In this regard I have been referred to the publication by UKCC, the predecessor body of the NMC, entitled Practitioner-client relationships and the prevention of abuse. That states at paragraph 2:

"The term 'client' has been used throughout this document and refers to all groups and individuals who have direct or indirect contact with registered nurses, midwives or health visitors in a professional capacity."

18. It is clear from the evidence before the Committee that Mr Phillips was in direct professional contact with Mrs R until a few days before the trip to Glastonbury. In order to accept her invitation, he ceased to be her CPN. Nevertheless, thereafter he remained in indirect professional contact with her. There is, in my judgement, ample evidence before the Committee in the evidence of Mrs Underwood and Mrs Smith to support that conclusion of the Committee.
19. In light of that conclusion, it is not necessary to consider the question of whether it would be open to a nurse to relieve himself of the duties he owes to a patient in his care by the simple step of transferring the patient to another nurse in the team.
20. The second ground is criticism of the admission of exhibit 10 into the evidence. That is the note of the disciplinary hearing held on 10th January 2005 by the Trust. In this regard Mr Phillips's case is that this document has been deliberately falsified to paint a black picture of his conduct and to show the Trust in a favourable light. I should record that the procedure before the Committee is governed by the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004. Rule 31(1) provides:

"Upon receiving the advice of the legal assessor, and subject only to the requirements of relevance and fairness, a Practice Committee considering an allegation may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil proceedings (in the appropriate Court in that part of the United Kingdom in which the hearing takes place)."

21. By a letter dated 22nd February 2007 Ms Strickland, counsel for the NMC before the Committee, wrote to Mr Phillips concerning certain procedural matters in the forthcoming hearing. She stated in that letter that in her view not all of the material contained in the records of his interviews and the disciplinary hearing was relevant and admissible. She considered that any reference to allegations of sexual assault should not be before the Panel because that was not an allegation made by the NMC and could be prejudicial to Mr Phillips's case.
22. Moreover, she considered that there should be no reference to statements made by other people because that was inadmissible hearsay and of no relevance to how the Trust put its case at the disciplinary hearing, because it was irrelevant to the NMC's assessment of the evidence that it hears. Accordingly, she had prepared proposed edited versions of the relevant exhibits, i.e. the two interviews and the notes of the disciplinary hearing, and she included copies for Mr Phillips's consideration. By the letter she asked Mr Phillips to let her know whether he agreed to the proposed edits. If he did, she would arrange for fully-edited copies to be made available to the Panel at the hearing. If he did not agree, or if he had any further suggestions for editing, she invited him to let her know and she would consider whether they could be agreed. She also made the point that in the event that they were unable to reach agreement they may need to canvass the issue with the Panel and its legal assessor during the hearing.
23. Shortly after that she received an e-mail from Mr Phillips. It said:

"If it helps you, the reports of the investigatory interviews were generally OK as reports, but I wouldn't like to comment on the veracity of the content."

24. So far as the proposal for editing was concerned, on 2nd March 2007 Mr Phillips sent an e-mail to Ms Strickland thanking her for her letter, and stated that he did not want the material edited.
25. In the course of her opening before the Committee, Ms Strickland made it clear that the NMC's case against Mr Phillips was based substantially on statements that he had made to the Trust during its investigation into the facts forming the basis of the allegations, and the disciplinary proceedings that they took in that regard. She explained that that was the position because only two people could say what actually happened at Glastonbury. They were Mr Phillips and Mrs R. Mrs R was not being called to give evidence. I will return to this because it was in fact the case that Mrs R had declined to speak to the NMC. Ms Strickland further indicated that written records of the statements had been made and that the NMC would be calling the people who had physically made the records and the people who were present at the hearings concerned.
26. It was in that context that the NMC called Mrs Susannah Leyden, who produced the records which she had produced in respect of the investigatory interviews. No challenge is made by Mr Phillips to the accuracy of those records of investigatory interviews. They called Mr Patrick McCullagh, who was present on those occasions as the investigating officer. They also called Miss Janine Kempster, who produced what became exhibit 10 in the proceedings in the tribunal below, that is the record she had produced of the disciplinary hearing on 10th January 2005. They also called Mr Graham Wilkin, who was present on that occasion as the presenting manager.
27. The note of the disciplinary hearing was produced by Miss Kempster before the Committee, and was admitted as exhibit 10 without objection from Mr Phillips. However, in cross-examination of Ms Kempster and of Mr Wilkin, Mr Phillips challenged the accuracy of the note and suggested that it had been falsified. The question for consideration is whether the Committee acted fairly in admitting this document.
28. First, there is no basis whatsoever in the evidence for the suggestion by Mr Phillips that the record has been deliberately falsified to show him in a bad light and the Trust in a good light. Having considered the manuscript note and the typed copy, I am satisfied that Miss Kempster did her best to take an accurate note of proceedings and to reproduce it as accurately as she could thereafter. Furthermore, although it was accepted that the note had been circulated for comments, and that Jo Young, who had been the chairman of the disciplinary body, made certain amendments, I am satisfied that there was no impropriety in that regard. On the basis of the evidence before the Committee and before me, I am satisfied that the allegations of fabrication and deliberate bad faith lack any basis and should not have been made.
29. Secondly, so far as the reliability of the note is concerned, it is important to bear in mind that it was not put forward as a transcript of the disciplinary hearing. It was obviously nothing of the sort. It was a typed-up version of a manuscript note, taken by Miss Kempster in longhand, of what had been said. It was put before the Committee on that basis and everyone was aware of its limitations and shortcomings. Mr Phillips's cross-examination of Miss Kempster did establish that there are certain omissions and inaccuracies in the note. In particular, there are some inconsistencies between the manuscript note and the typed version.
30. Mr Phillips had been provided with a copy of the manuscript version, and he was able to cross-examine on that basis. Furthermore, the original manuscript document was before the Committee and it was examined by the Committee and by Mr Phillips and Ms Strickland during the hearing. I have examined the different versions with care. It seems to me that none of the inconsistencies or inaccuracies of transposition identified by Mr Phillips at the hearing before the Committee have any particular relevance to the matters under consideration. At the appeal hearing today Mr Phillips accepts that, beyond providing some support for the general submission that the document is not entirely accurate.
31. At the hearing before the Committee Mr Phillips did complain about the omissions from the document. However, he did not draw attention to any matters of particular significance that were omitted, nor did he suggest that his recorded admissions were untrue or that the omitted passages of evidence had any bearing on the accuracy of the admissions contained in that document. That has also been his position before this court.
32. Furthermore, in this regard it is important to bear in mind that on this occasion Mr Phillips does not make any criticism of the fact that the records of the investigatory interviews were adduced before the Committee. In fact they had been supplied to him and he had made handwritten corrections to them and returned them countersigned. They covered much of the same ground covered by the record of the Disciplinary Committee.
33. The only allegation in respect of which the Committee relied on the note of the disciplinary hearing, as opposed to relying on the notes of the disciplinary hearing in conjunction with the interviews, was allegation 1a(vi): Mr Phillips had asked Mrs R to kiss him. This admission appears in the note of the disciplinary proceedings, page 40:

"JS Regarding the sleeping bag arrangements. She suggested you zip them together — what was your opinion of this?

EP That she felt the same as I did, otherwise she wouldn't have agreed

JS Did you not think she might have been uncomfortable?

EP No. When we got in, I asked her to give me a kiss and she turned away

JS What message did you think this gave?

EP A clear 'I'm not interested in you sexually'"

Thereafter, according to the note, Mr Phillips was questioned further about this on the premise that he had asked for a kiss and he did not suggest, according to the note of the proceedings before the disciplinary body, that he had not asked her for a kiss. The disciplinary tribunal made a finding that Mr Phillips had asked Mrs R for a kiss. The Committee relied on the evidence of the admissions contained in this document as evidence that Mr Phillips had asked Mrs R for a kiss. It has not been suggested by Mr Phillips that he did not make the submission or, if he did, it was untrue.

34. Today in the course of his submissions before me he has accepted that this is an accurate record in this regard, and he has accepted that he did ask Mrs R for a kiss. In fact, Mr Phillips made it clear in his submissions before me that he does not challenge the accuracy of any of the findings of primary fact made in paragraph 1a of the decision letter. As a result, it is accepted that on 18th June 2004 he ceased to act as Mrs R's CPN and care co-ordinator and transferred those roles to Mrs Vicky Smith in order to be able to accept Mrs R's offer of a ticket to Glastonbury. He accepts that in doing so he acted against the advice of Mrs Underwood. He accepts that he attended the Glastonbury Festival with Mrs R on the dates alleged and that he shared a tent with her at the Glastonbury Festival. He accepts that they were in two sleeping bags which had been zipped together while he was naked and she was fully clothed, and he accepts that while naked in the sleeping bags with Mrs R he asked her to kiss him.
35. I will return to allegation 1a(vii). At the time he was in the tent with Mrs R at Glastonbury, Mr Phillips had already observed signs that Mrs R was relapsing into mental illness and was aware that sexual disinhibition was a symptom of her mental illness. As a result, the only substantial issue which arises in relation to findings of primary fact by the Committee is that relating to what has been referred to before me as the penultimate charge, that is the charge contained in paragraph 2a(ii), to which I shall return.
36. It became clear during the hearing before me that the real complaint which Mr Phillips makes in relation to the admission of the note of the disciplinary hearing is that it includes prejudicial references to assault and hearsay statements. However, this is precisely the point made, very fairly if I may say so, by Ms Strickland in her letter to the appellant in advance of the hearing before the Committee. Mr Phillips did not want the document edited, and he explained to me at the hearing before me this morning that he wanted the whole document to go in so that the Committee could see how unfairly the disciplinary tribunal had behaved. That was his choice. He cannot now complain that the document was placed before the Committee in an unedited form.
37. The third ground of appeal consists of criticisms of the Committee's finding of fact. Primary findings of fact made by the Committee are, in general, accepted by Mr Phillips. The exception to that is the Melton charge. That alleges that Mr Phillips failed to co-operate with other members of Trust to minimise risk to Mrs R, in that when a children's social worker expressed concern about Mrs R's mental health to the Trust, he failed to inform Steve Melton, the back-up duty officer, that he had been with Mrs R at the Glastonbury Festival and observed signs that she was relapsing into mental illness.
38. Pausing there, I should observe in parenthesis that in the course of his submissions Mr Phillips did accept the finding of the tribunal that he had, on his return from Glastonbury, failed to report to Joan Underwood or Vicky Smith that he had been with Mrs R at the Glastonbury Festival and had observed signs that she was relapsing into mental illness.
39. So far as the Melton charge is concerned, Mr Phillips says that he most certainly did tell Mr Melton what had happened in Glastonbury, and had expressed his concern about the symptoms of relapse which he had observed. In this regard Mr Phillips alleges that Mr Melton has falsified a document which appears in the bundle before me at pages 28 and 29. This document purports to be in part a record of a conversation with Mr Phillips. It is headed "30.6.04", and there is a note "3.30 pm". Then there is a reference to Mrs R receiving a message from her ex-husband. It continues to record that Mr Melton discussed with Mr Phillips, ex-care co-ordinator of Mrs R, and agreed that the situation could be exasperated by intervention, or a situation could be created due to the long running feud between Mrs R and her husband.
40. Mr Phillips says that this note is not an accurate record of the conversation and that in fact he did provide a full account to Mr Melton of what had occurred and of his concern at the symptoms shown by Mrs R. Mr Phillips says that the note is an obvious fabrication produced by Mr Melton in an attempt to protect his own position and to avoid criticism himself. Mr Phillips made the same submission to the Committee. They had the advantage of hearing Mr Melton give evidence. They did not hear evidence from Mr Phillips. Mr Phillips was given the opportunity to give evidence and to call evidence on his behalf. The options were very fairly explained to Mr Phillips by Mr Astor, who was the legal adviser to the Committee. It is clear to me, on reading the transcript, that Mr Phillips made an informed decision not to give evidence or to call any evidence on his behalf.
41. The Committee considered the matter and they found Mr Melton to be an honest and reliable witness. They accepted his account, and that was the basis upon which they upheld the Melton charge. This is, therefore, an unpromising starting point for Mr Phillips's submission before this court on appeal. This court will be slow to interfere with findings of fact where the court of first instance has had the benefit of seeing and hearing a witness.
42. However, the matter does not stop there. Far from supporting Mr Phillips's allegations of bad faith and the fabrication of evidence, it seems to me that the manuscript document which appears at pages 28 and 29 of the bundle is entirely consistent with Mr Melton's account, and consistent with the findings of the tribunal. First, the timing of the note is not inconsistent. Mr Phillips's submission is that this note indicates that it was written at 3.30 pm. I have to say that is not my reading of the note; I read it as indicating that the conversation which it records took place at 3.30 pm. Mr Melton never said in the course of his evidence that he wrote the note at 3.30 pm, or that he wrote it while he was on the telephone. His evidence supports the view that it was written up after 3.30 pm. He says at one point in his evidence that it was written late that afternoon and that it must have been written after 3.30 pm.
43. Furthermore, the passage at the foot of page 28 relied on by Mr Phillips (phone calls listened to on 29th June 2004, 30th June 2004 and 1st July 2004) does not, to my mind, provide any support for his submission that the first entry was made after 30th June 2004. The first entry relates to what was happening on 30th June 2004. The later entry was clearly made on 1st July 2004. It refers to earlier phone messages having been listened to on the three dates which it identified. Accordingly, this document does not, to my mind, in any way undermine the evidence of Mr Melton.
44. The Committee was entitled to accept Mr Melton's evidence. They had the advantage of seeing and hearing him give his evidence. They considered him honest and reliable. There is to my mind no basis for the very serious allegation made against Mr Melton that he fabricated this note.
45. The other complaints made by Mr Phillips in relation to findings of primary fact really amount to the submission that the Committee was wrong to accept the evidence, in particular that of Mrs Underwood and Mrs Smith, and was wrong in failing to accept his arguments in relation to particular points which he said undermined the evidence against him. However, as I have already indicated, with the exception of the Melton charge and the evidence relevant to that, all of the other findings of primary fact made by the Committee are now in fact accepted by Mr Phillips.
46. The fourth ground of appeal is criticism of the extent of the investigation carried out by the NMC and its failure to adduce further witness evidence. In this regard Mr Phillips says he did not feel it was proper to seek to influence the course of the investigation, but he complains that the NMC has not taken statements from anyone who was working in his office at that time, and here he draws attention to Sally Hankin, Liz Findlay and Julia Townsend and David Newcome, all of whom he says might have been able to give evidence in relation to the conversation which he says he had with Steve Melton.
47. So far as that aspect of the matter is concerned, it would have been open to Mr Phillips to call witnesses to give evidence on his behalf. He was aware from January 2006 onwards of the precise allegations which were made against him. He was aware from that date of the specific allegation in relation to the Melton charge. However, he appears to have made no efforts to obtain evidence or to call any witnesses and there is no witness statement before the court by Mr Phillips relating to these matters. However, in view of the fact that it would have been open to Mr Phillips to take steps himself in order to call this evidence, it does not constitute a valid basis on which to challenge the decision of the Committee.
48. In his written submissions Mr Phillips also criticises the Committee for its failure to obtain evidence from Mrs R. Here the fact is that Mrs R refused to speak to a representative of the NMC. In those circumstances, it was not possible to call her to give evidence. I am satisfied that a request was made by the NMC of the Hospital Trust with a view to contacting Mrs R to obtain a statement from her. However, the answer which was received was that Mrs R did not wish to co-operate. It would have been open to Mr Phillips to call Mrs R to give evidence on his behalf. It is plain from the transcript of the hearing before the Committee that the chairman, the legal adviser and Ms Strickland all went to considerable lengths to explain to Mr Phillips the options open to him at the close of the case against him. It is clear from the transcript that Mr Phillips made an informed decision not to give evidence himself or to call evidence on his behalf.
49. Mrs R was in fact present at the first day of the hearing, in company with Mr Phillips, as indeed she has been present today at the hearing of this appeal. However, Mr Phillips chose not to give evidence or to call any evidence on his behalf.
50. Mr Phillips is also critical of the failure of the NMC to call Dr Johnson. Dr Johnson is the psychiatrist who visited Mrs R in company with Mr Melton at the end of the week following the trip to Glastonbury. However, there was before the Committee, in the form of agreed evidence, a witness statement from the consultant psychiatrist, Dr Hassan, who had responsibility for Mrs R. I am satisfied that that evidence provided a very clear account of the position as it existed before the Glastonbury trip, and also provided clear evidence of the consequences of that trip, so far as Mrs R's mental health was concerned. In the circumstances, I consider that there was no unfairness to Mr Phillips in the manner in which investigation was conducted by the NMC.
51. The fifth ground is delay in the proceedings before the Committee. Here Mr Phillips complains that the subject matter of these charges relates to events in the summer of 2004. He complains that the matter was not brought to a hearing before the Committee until March 2007 and the decision of the Committee was not delivered until the conclusion of the hearing on its third day on 23rd May.
52. His complaint is essentially that with the passage of time memories fade. However, when one has regard to the fact that at this hearing Mr Phillips has accepted the primary allegations of fact made against him in charges 1a(i)-(vi) and 2a(i), then that only leaves for consideration 1a(vii), which relates to his awareness of signs that Mrs R was relapsing into mental illness, and being aware that sexual disinhibition was a symptom of her mental illness, at the time when they were together in Glastonbury.
53. So far as the Melton charge is concerned, there is no witness statement from Mr Phillips setting out an account of difficulties encountered in calling evidence as a result of the passage of time. Therefore, there is no basis upon which I could conclude that the delay has caused any prejudice to Mr Phillips. There was, from what he tells me in the course of his submissions, no serious attempt made on his part to obtain evidence from witnesses who may have overheard the critical conversation which he says took place with Mr Melton. I conclude, therefore, that this ground cannot form a legitimate basis of challenge to the Committee's decision.
54. Sixthly, and finally, I come to the criticism of the Committee's finding of misconduct and impairment of fitness to practise. In this regard Mr Phillips, addressing me this morning, points to the wording of charge 1a, which alleges that he failed to respect the client, Mrs R, as an individual in that he failed to maintain proper professional boundaries and ensure that all aspects of his relationship with her were focused on her needs.
55. His submission is that there was nothing disrespectful in their going together to Glastonbury, and their sharing a tent and a sleeping bag, even in the circumstances, which he accepts. He professes his shock at the idea that he might have intended to do anything to bring about a relapse or recurrence of mental illness. In his submission, he says that the suggestion is breathtaking. On the contrary, he says, he did what he could to prevent a relapse.
56. It seems to me, however, that Mr Lawson, who appears on behalf on the respondent NMC, is right when he says that Mr Phillips has misunderstood the nature of the allegation. The allegation of failure to show respect is in two specific respects: failing to maintain appropriate professional boundaries and failing to ensure that all aspects of the relationship were focused on Mrs R's needs.
57. The relevant code of conduct states that the only appropriate professional relationship between a client and a practitioner is one which focuses exclusively upon the needs of the client. It states that it is the responsibility of the registered practitioner to maintain appropriate boundaries within the practitioner-client relationship at all times. It states that registered nurses must very carefully consider whether it is ever appropriate to have anything other than a purely professional relationship with a client or a former client; and it states that personal relationships with vulnerable clients are never acceptable. In this regard it is significant that Mr Phillips accepted in the course of the disciplinary hearing that he was aware of the fact that Mrs R was a vulnerable client.
58. It seems to me that Mr Phillips's conduct, of which complaint was made before the Committee, was clearly in breach of those provisions. Furthermore, it is highly significant that Mr Phillips had known for 18 months prior to the Glastonbury trip that Mrs R was sexually disinhibited, and he was clearly aware of the risk of a relapse. Mr Phillips submitted before this court that he was not aware of any signs of a relapse until after the encounter in the tent, and the evidence before the Committee on this point, in the form of the note of the disciplinary hearing, supports the view that the first sign of a relapse was at 10.00 pm on the Friday evening and that the incident in the sleeping bags did not occur until 2.00 am on the Saturday morning, at which time Mrs R was still showing signs of relapse. That was, according to the note, Mr Phillips's own account to the disciplinary tribunal, and no reason has been advanced before me which persuades me that is even arguably an inaccurate account. Mr Phillips's response, when I put this to him this morning, was to say, "That is a judgement expressed with the benefit of hindsight." However, that was the account provided by Mr Phillips to the disciplinary tribunal. In any event, it is clear that Mr Phillips was well aware of the risk of a relapse on the part of Mrs R.
59. The Committee included two nurses, one a registered mental nurse with experience of acute adult psychiatry. Given the nature of the allegations made in this particular case, the question of whether the facts found amounted to misconduct, or whether the appellant's fitness to practise was impaired by reason of that misconduct, were pre-eminently issues to which the Committee's experience and expertise were relevant. I consider that, in the light of the findings of fact in relation to the allegations before it, the Committee was clearly entitled to find that the appellant had failed to respect Mrs R in terms of an appropriate practitioner-client relationship, and had acted in breach of the code of conduct and the respondent's guidelines, for the reasons which the Committee gave. There is no legitimate basis for this court to interfere with its assessment in the circumstances of this particular case.
60. Finally, in this regard, I regret to say that the way in which Mr Phillips has presented his case before this court has left me in no doubt that the Committee was correct in its conclusion that he lacks any insight into the nature of his conduct or why it was regarded as unprofessional.
61. There is no challenge to the decision of the Committee to strike off Mr Phillips from the Register. In submissions before me today Mr Phillips very frankly accepted that if Mrs R had been his client that would have been a reasonable step to take.
62. I appreciate that what has happened has had very grave consequences for Mr Phillips. However, the Committee's conclusions in relation to impairment and unfitness to practise are, in my judgement, unassailable. For these reasons the appeal will be dismissed.
64. MR LAWSON: My Lord, I do ask for my costs of this appeal. I add in doing so that the NMC is not publicly funded; it is funded solely by subscription from the members of the profession. I do so in the understanding that there is a difference from obtaining the order and enforcing it and it is one that we are well aware of, but I ask for the costs nevertheless. A week or so ago a schedule was given to Mr Phillips. An updated version was sent by e-mail yesterday, and I pass up a hard copy both to you and to him, and I ask for an order in the sum stated with the title "Grand total" on page 3. (Handed). My Lord, I have no other submissions to make.
65. MR JUSTICE LLOYD JONES: Is the NMC registered for value added tax?
66. MR LAWSON: We do not immediately know the answer, but we do know that we are a charitable organisation. Sorry we do not know the answer.
67. MR JUSTICE LLOYD JONES: Because if you are registered for value added tax, there is no basis on which you can claim to recover value added tax on the fees, is there?
68. MR LAWSON: I cannot answer that question. I cannot remember in all the cases I have done whether it has been claimed before or not, but of course if we are not entitled to it, we would not want it. Maybe the order could be for a sum for VAT, if that is payable, and we will establish what the true position is.
69. MR JUSTICE LLOYD JONES: I do not think that will quite do.
70. MR LAWSON: I am just trying to think through the problem, that is all.
71. MR JUSTICE LLOYD JONES: I do not think that will quite do, because if I am asked to assess a figure summarily, I must know the basis on which I am doing it. I cannot just take a figure, regardless of whether you are liable to pay value added tax or not.
72. MR LAWSON: I accept that; I have just never been asked the question and it is a googly.
73. MR JUSTICE LLOYD JONES: Right, sorry about that. Could you try and find out?
74. MR LAWSON: (Pause). My Lord, subject to the answer coming back, what we would ask, because it is sensible rather than enforcement that we are interested in, is an order excluding any sum for VAT.
75. MR JUSTICE LLOYD JONES: Thank you very much. That is helpful. Mr Phillips, what do you say about this?
76. THE CLAIMANT: Well, this appeal was not brought frivolously to waste the time and resources of either the court or the Nursing and Midwifery Council. I really feel that the question of, you know, who is a client and exactly how the boundaries are defined is not just important in this case but I think that is important in the general case. I would ask that each side bear their own costs. If I were a person of any means, I would have had a lawyer, I would have known how to take a statement and request a witness to attend, but I am working on a building site, my savings are required to pay off the endowment part of my mortgage for the little house in Wales and it pains me greatly to think that I am going to go into my retirement in debt because of something which I brought about through the honest conviction that it was the right thing to do.
77. MR JUSTICE LLOYD JONES: What are your instructions in relation to enforcing any order? I ask that simply because you have referred to it.
78. MR LAWSON: Exactly. My understanding is that the general rule is that we do not enforce the order, but we nevertheless like it in place. I am not aware, and this is having done cases for the best part of 20 years before this court, of any order that we have obtained being actually enforced, but there may be circumstances where it is appropriate. It is not at the moment foreseen that there are such circumstances in this case, so there is no present intention, and I am not aware of anything that would change.
79. MR JUSTICE LLOYD JONES: If you have no intention of enforcing it, are you not adequately protected by liberty to apply to the court?
80. MR LAWSON: It is easier to get the order now than to come back whenever down the line and have to explain it to a new judge who will say, "Why did you not ask for it then?" Bearing in mind, in particular, that under the -- the overriding objective is to come to court as few times as possible, today would be the appropriate time, not goodness knows when.
81. MR JUSTICE LLOYD JONES: Yes, very well. In principle it seems to me that you should have an order for your costs. I am very concerned about the size of this bill. It seems to me that it is much higher than any bill of costs which this appellant should reasonably be asked to bear. In all the circumstances, I could go through this item by item and say that I think that rather more time has been spent under some of these heads than was reasonably necessary --
82. MR LAWSON: My Lord, we are content with a very broadbrush.
83. MR JUSTICE LLOYD JONES: -- but in all the circumstances I propose to make an order that the appellant should pay the costs of this appeal, which I summarily assess in the sum of £5,000. That does not include any element of VAT.
84. MR LAWSON: Next time, my Lord, I will have the answer to that question.
85. MR JUSTICE LLOYD JONES: Any further matters arising? Mr Phillips?
86. THE CLAIMANT: Pardon?
87. MR JUSTICE LLOYD JONES: Any further matters? I think not. Thank you both very much.