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
		11 March 2009

1. MR JUSTICE BEATSON: This is an appeal against the decision of the Nursing and Midwifery Council's Conduct and Competence Committee on 28 August 2008 to strike the appellant's name off the register. The Committee was satisfied that his fitness to practise was impaired by reason of being convicted on 5 October 2007 at the Didcot Magistrates' Court of seven offences of making false or misleading representations about medicinal products contrary to section 15 of the Theft Act.
2. The primary ground upon which the decision is challenged by the appellant is that the Committee should not have proceeded in his absence. He argued that, in doing so, it deprived itself of the opportunity of hearing his mitigation. He also submitted that the sanction was inappropriate because no life was endangered and there was, and is, no danger to the public from him, and that the decision letter was inadequately reasoned.
3. In opening the case, Mrs McDonald said that the Council recognised that this is a difficult case. It is in a sense a tragic case. The appellant is 41. He has an Honours degree in Nursing and two Masters degrees. He has been registered by the Nursing and Midwifery Council since 1993. He worked as a nurse for the NHS for over 16 years, latterly based in Nettlebed and Wallingford. He has had no previous contact of a disciplinary nature with the Nursing and Midwifery Council.
4. I have read a reference from Dr Silver at the surgery at Nettlebed which is very positive, describing him as diligent, always striving for the best care of his patients, and with an exceptional ability to appraise a situation. He has an interest in public health, and completed an MSc in Humanitarian Programme Management at Liverpool University, School of Tropical Medicine in August 2008. He is engaged in charitable fundraising to assist in enabling individuals from other countries to have difficult surgery in this country, and to enable the purchase of medical equipment in The Gambia from which he originates.
5. The appellant's offences were committed to obtain medicinal products on seven occasions between 25 August and 30 December 2006 for his uncle who was dying of prostate cancer in The Gambia. His uncle had taken him and his siblings in when their father died in a fire, and had financed the appellant's education. The uncle's doctor had prescribed the medicine, painkillers and antidepressants. The medicine was not available in The Gambia. The appellant requested the prescriptions for various patients and signed the requests in his own name. The prescriptions were later dispensed. He later deleted the prescription entries from the practice's computer.
6. His offending came to light in January 2007 when a pharmacy returned one of the prescriptions to the practice. As I have stated, he was convicted on 10 October and given a community sentence. Following the conviction, the matter was referred to the Council. An interim order was imposed on 20 November 2007. That order was imposed in his absence. He was apparently in France at that stage.
7. Before describing the circumstances which give rise to the appeal, I turn to the statutory framework. The register is the creature of Article 5 of the Nursing and Midwifery Order 2001 (SI 2001 No. 253). Article 5(4) provides that the register shall show in relation to each registrant such address and other details as the Council may provide. Rule 16(1) provides that a Registrant shall notify the Registrar in writing within one month of any change in her name or address.
8. The provisions in respect of service of documents are contained in rule 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 (SI No. 1761). By rule 34, any notice of hearing required to be served upon a Registrant shall be delivered by sending it by postal service or other delivery service in which delivery or receipt is recorded, or by leaving it either at the practising address of a legal representative or the professional address of a professional body or trade union, and in any other case, at the Registrant's address in the register, or where this differs and it appears more likely to reach her at her last known address, the Registrant's last known address.
9. Rule 21 makes provision for hearings to take place in the absence of a Registrant. Rule 21(2) provides:

"(2) 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."

10. I return to what happened in this case. After the matter had been referred to the Council and the interim order had been imposed, the matter was further considered by the Investigating Committee and referred to the Conduct and Competence Committee on 28 April 2008. On that date, a letter was written to the appellant at his registered address in Didcot, stating that if the panel decided his case required a hearing, "it is likely to be held in August, September or October 2008". I understand from Mrs McDonald this to be a pro-forma that is attached to the specifics at the beginning of the letter. At the end on page 4 the letter states:

"If you change your address

You must remember to notify the NMC of any change of address. If I am unable to contact you, the proceedings could continue without you knowing or being able to respond to the allegations."

11. The appellant acknowledged receipt of this letter in a letter dated 13 May 2008. He requested a full hearing to consider the allegation, set out the circumstances of his offence and stated that he was due to travel to Thailand on 16 May to undertake field research for his MSc and would be returning on 15 July to write the dissertation that was due on 15 August. The letter states:

"This means that I will be available to attend the hearing at the earlier date of in September stated in your letter."

12. He asked that, as he was leaving for Thailand, the best contact for him was his Hotmail e-mail address. On 22 May (that is after he had left for Thailand), the case officer in his case e-mailed him, stating that the Council only sent correspondence via mail due to confidentiality, and asking him to supply them with a contact address. The appellant responded in an e-mail dated 22 May, stating:

"Am afraid I am unable to supply you with an appropriate contact address until my return to the UK on the 16th of July. Since my divorce December I rented a flat 39 Roebuck court to be near my kids ...

I had to give up the flat on the 15th of May as a result of extreme financial constraints due to financing my MSc and the lost[sic] of my NMC registration."

13. The appellant's last paragraph states:

"As you are unable to send my communication to me by e-mail, 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."

14. The appellant returned to the UK on 15 July. He did not contact the Council or provide it with details of an address. The notice of hearing is dated 11 July. It was sent to his registered address by first class post and recorded delivery on 24 July. That letter, it appears from a track and trace result, was returned to the Council.
15. The hearing scheduled for 26 August took place. The panel was informed of the notice given; of all the previous correspondence, including the letter of 28 April; the fact that the appellant had e-mailed the case officer saying that he had to give up the address he had had as his registered address; that a request for communication by e-mail had been made and refused; and the statement in the e-mail dated 22 May asking that communications be retained until his return, at which time he would contact the Council with an address.
16. The legal assessor had advised the Committee that the rules as to service had been complied with, and that, in those circumstances, the Council had a discretion in accordance with the rules to decide whether or not to proceed in the Registrant's absence. It was in fact after that advice that consideration was given to the previous correspondence and information in the e-mails.
17. The panel decided to proceed in the absence of Mr Jatta. Their reasons for the decision are stated thus:

"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."

18. After referring to the conviction, the panel stated:

"In view of the nature and seriousness of the allegations, and the correspondence to which we have been referred, we have concluded that it is in the interests of justice for the hearing to proceed today."

19. The panel considered the case and concluded, after retiring and deliberating in camera, that the appellant's fitness to practise was impaired by reason of his convictions. I should add that, before making the decision as to whether to proceed in his absence, the panel also retired, and did so for a period of about 45 minutes.
20. The panel then turned to consider sanction. The Chairman asked whether the Registrant had sent any information about mitigating circumstances or made written comments. The case presenter informed the panel that he had not written anything about the appropriate sanction, but that letters had been received throughout the proceedings at various stages which perhaps explain about the family pressure he was under. The legal assessor also referred at this stage to what the appellant said in his letter of 13 May, which set out the background to the offences and the sentencing, his clean career record, his early plea of guilty, and his successful completion of his MSc, apart from his dissertation at that stage. The panel was also apprised of the background and the closeness of this appellant with his uncle.
21. The panel concluded, after a further adjournment of just under 20 minutes, that it had decided to make a striking off order. It sets out its reasons, and as there is a reasons challenge to the decision letter, I set those out here:

"We considered first whether to take no further action. In view of the seriousness of the registrant's convictions with repeated offences involving dishonesty, it would not be in the public interest to impose no sanction. We next considered whether to impose a caution order. We gave the registrant credit for his previous good history and his early admission of the facts alleged. However, we concluded that the registrant's behaviour could have caused direct or indirect patient harm in that he was obtaining by deception drugs which had not been properly prescribed and which, when questioned, he appeared no know little about.

We were not convinced that the Registrant had any real insight into his failings, and his actions over a period of about four months could not be characterised as an isolated incident. We took into account the registrant's argument that he was obtaining drugs which had been prescribed for a relative in Gambia which was not available there. However, this could not excuse the registrant's serious dishonesty or his departure from fundamental requirements of the NMC's Code of Conduct. We have not had the benefit of any references or testimonials on behalf of the registrant.

Having considered all these matters, we concluded that a caution would not be of sufficient sanction. We next considered a conditions of practice order. Given the nature of the registrant's conduct leading to his convictions, we did not consider that a conditions of practice order would be an appropriate or sufficient sanction.

We then considered a suspension order. We did not consider that that sanction would be appropriate as we concluded that the registrant's misconduct was fundamentally incompatible with continuing to be registered with the NMC. The registrant's actions in forging prescriptions for patients of a practice where he was employed were a serious departure from the relevant standards of the Code, as well as being contrary to the laws of the land. His actions resulted in criminal convictions for offences of dishonesty for which the sentence of the court imposed on 27 November 2007 was that the registrant should be subject to a community order to carry out unpaid work for 160 hours in the following 12 months.

In the circumstances, we had no doubt that confidence in the Council would be undermined if the registrant was not struck off. Mr Jatta may not apply for restoration until five years after the date when this decision takes effect."

22. On the issue of the Committee proceeding in his absence, the appellant argued that because he had had no reply to his letter of 13 May, saying that because of his trip to Thailand he was available to attend a hearing in September, he was hoping that the hearing would be in September, and that if it was not, he would be contacted. He submitted that the Council, even if it did not send confidential papers by e-mail, could easily have contacted him to inform him that a letter was awaiting by e-mail to the address that they used. The Council had told him that it would not communicate by e-mail and, as I have observed, he has stated that, in the light of that, he asked that communications be retained at the office, upon which time he would contact the Council with an address. He did not, however, do so until after he had completed the Masters dissertation.
23. Mrs McDonald for the Council, putting her submissions moderately but with force, submitted that the appellant was not entitled to assume that the ball lay in the Council's court. He did not contact them as he had said. They served the last notified address. The panel considered all the circumstances before deciding to proceed, and in these circumstances, there was no procedural irregularity. The rules made under the authority of the statute enabled it to do so.
24. 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 McDonald that in this case this appellant was engaging with the Committee. Her concern on behalf of the Council was that the Council deals (and this court is very familiar with this) with many Registrants who do not engage with relevant Committees. The Council's concern was that departure from a system providing for service at registered addresses in a situation where a Registrant has an obligation to notify changes of address was a slippery slope which would make it very difficult for the Council to engage in its regulatory functions efficiently.
25. 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 with 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 practise, 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 which vitiated what happened thereafter. There is no criticism of the panel itself. But notwithstanding the obligation of a 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. I emphasise that I consider that the circumstances of this case are highly unusual. The more common situation is of a Registrant who does not engage or who ceases to engage. Here, the appellant was engaging. There was no attempt made to see whether he had ceased to engage. Accordingly, I have concluded that, on the first ground, the appeal should be allowed and the matter should be remitted to another hearing.
27. I should add that the other two grounds upon which the appeal was brought -- inadequate reasons in the decision letter and inappropriate sanction -- are not grounds upon which I would have allowed this appeal. The decision letter does refer to the circumstances the appellant considers were exceptional. It states that the panel took into account the Registrar's argument that he was obtaining drugs which had been prescribed for a relative in Gambia which were not available there.
28. As far as the sanction is concerned, this was a criminal conviction. The Committee considered that the appellant had little insight into his failings. The conviction involved dishonesty. It occurred in the course of the appellant's professional practice as a nurse, and it occurred over a period of time. Although all the offending was prompted by the same motive, prescribing drugs unavailable in The Gambia for the dying uncle, these are serious matters. I emphasise that on the substantial two grounds, this appeal would have failed. It is only on the procedural ground that I am sending it back.
29. The loss of the right to exercise one's profession is a serious right. The needs of regulators to have a system which they can manage effectively and efficiently when often dealing with difficult people are important. However, so is the impact of striking off on an individual. I note, for example, that the panel state that they did not have the benefit of references or testimonials from the Registrant. I have referred to the background and to letters which are before me, not because they are relevant to the ground on which he has succeeded, but because there are matters which might have been put before the panel had the applicant been alerted to the letter.
30. This is not, I emphasise, a general caveat on the duty on the Registrant to keep the Council informed; it is a decision highly tied to specific circumstances which I consider to be exceptional.
31. MRS MCDONALD: My Lord, I am sure you will understand I am going to reserve my position and apply for permission to appeal. In terms of the basis of that application, I base it obviously on the --
32. MR JUSTICE BEATSON: Are you making an application?
33. MRS MCDONALD: I am making an application.
34. MR JUSTICE BEATSON: You said you reserved your position.
35. MRS MCDONALD: Sorry, I meant I am reserving my position until I receive instructions, and therefore in order to do so, I make my application now.
36. MR JUSTICE BEATSON: I was confused by what you said; and the basis of your application?
37. MRS MCDONALD: Yes, my Lord, it is that the narrow basis of the decision on which the appeal has been allowed, namely the failure by the case officer or the Council indeed to send an e-mail to the Registrant, ignores the obligation on him to make contact on his return, which would have obviated the situation that he found himself in, and is not founded on any legal obligation which engages the Council. That is my application.
38. MR JUSTICE BEATSON: Yes, I am going to ask that you let me fill in a form first, and I will tell you what the answer is. (pause)
39. I am going to give you permission to appeal. The reason is that although -- I will write it and read it out. I know you have seen the form, in any event. What I have said is that I have found in the Council's favour. I have given the Council permission to appeal to the Court of Appeal, and the reasons why I have given them permission are:

"This decision has proceeded on what I consider to be exceptional factual circumstances. However, the Council is entitled to argue that, in concluding that it was in these circumstances required as a matter of public law to notify the Registrant by e-mail that a letter requiring his attendance at a hearing was to go to his former address, insufficient attention was paid to a Registrant's obligation to keep in touch with the Council."

40. MRS MCDONALD: I am grateful. I imagine Mr Jatta may wish to make an application in relation at least to the costs of issuing this appeal.
41. MR JUSTICE BEATSON: Yes. I think what counsel is delicately hinting at is that you had to pay the costs of issuing this appeal, did you not?
42. APPELLANT: Yes.
43. MR JUSTICE BEATSON: And you are entitled to ask that, as you have won it, the Council pay those costs. Would you like to ask that?
44. APPELLANT: Yes, I would.
45. MR JUSTICE BEATSON: I think at this stage you cannot say anything can you?
46. MRS MCDONALD: No, I do not think I can, my Lord, other than making sure that that amount is clearly defined.
47. MR JUSTICE BEATSON: The amount is the costs of issuing, ie the costs you had to pay the court for filing the paper, because you are acting for yourself. You cannot charge for your time is what I think counsel is saying. If you had a lawyer, the lawyer's time would count. Of course, if the case goes to the Court of Appeal and you lose, then all that goes.
48. APPELLANT: Thank you, my Lord.
49. MRS MCDONALD: My Lord, there is one other very short matter of housekeeping which I just raise with you. I was also able over the short adjournment to take instructions. In fact, it was my pupil who had been charged with the task of bringing the bundles to court so you will appreciate my concern. She is not behind me today because it is her first day on her feet, but what she tells me, and I do no more than convey this information to the court, is this: when she arrived at the Administrative Court listing office holding both the bundle with the skeleton argument and the hearing bundle, she was told that the skeleton argument had to be filed at a different office. So, as I understand it, listings accepted the hearing bundle, and then sent her to a different office -- she was not able to tell me which one; I think from her description it was the main administrative office -- to lodge the bundle there. That is the explanation, and I am not sure --
50. MR JUSTICE BEATSON: I hope you will agree that the way I dealt with this problem this morning was a very blame-free way.
51. MRS MCDONALD: Absolutely, my Lord, and the only reason I mention it --
52. MR JUSTICE BEATSON: My learned associate hears what you say and we can go back to that. There is a big staff turnover in some of these offices. But the oddity about it is, if that had happened, I should have got the hearing bundle and not your skeleton argument.
53. MRS MCDONALD: It took a bit of time to get to the bottom of it, and, as I say, the only reason I mention it was the slight concern that we felt that she had been told to drop them off in different places.
54. MR JUSTICE BEATSON: I am sure that this message will get back to the office, and if the office has anything to learn, it will learn it, and no doubt your pupil will not for a long time -- it will be a short period that she carries things over to lodge them with the court. It is a delicate thing to say, but there is a big turnover, and you do have to make sure you get things to the right place. I hesitate to turn this round, but the Council expects those who deal with it to get things right; the court of course is much more user friendly.
55. MRS MCDONALD: Thank you, my Lord.