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
		4th October 2010

1. MR JUSTICE HOLMAN: This is a statutory appeal from decisions of the Conduct and Competence Committee of the Nursing and Midwifery Council. At a hearing on 7 and 8 December 2009 the committee found proved ten allegations of misconduct by the appellant and struck her off their register (although the order currently in force is technically an interim suspension order). The essential issue is whether the Committee adequately exercised their discretion to proceed in her absence when the prescribed notice of hearing had been returned to the NMC undelivered by the Royal Mail.
2. The appellant was a registered nurse. In August 2007 she applied for a new job as a nurse using a NHS e-recruitment application form. She gave the names and email addresses of two referees. She described one of them, Mr Theophilus Dzimega, as a charge nurse and the other, Mr Kuma Kojdo (or Kojdo Kuma), as a senior staff nurse.
3. It is not necessary to the present judgment to make detailed reference to either the facts or the precise charges which the committee found proved (although I note that by finding charge 7(b) not proved, and their reasoning, the committee clearly demonstrated their close attention to the precise charges and the evidence in relation to them, and their capacity to discriminate). The essence of the allegations and the findings was that Mr Kuma Kojdo was a non-existent person or alternatively a pseudo-reference also to Mr Dzimega; and that, as the appellant well knew, Mr Dzimega was not a nurse at all. In the case of both referees and references, it was alleged and found proved that they were in fact bogus references actually compiled and emailed by the appellant herself.
4. At all material times up to 31 October 2009, the appellant lived at her then registered address, Flat 8, 1 Lidgate Road, London SE15 6DW (which I will call "Lidgate Road"). During the summer of 2009 there was preparatory two-way communication between her and the NMC to and from that address.
5. The subsequent procedure is governed by the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004, Statutory Instrument 2004 No 1761 (which I will call "the rules"). Rule 11 requires that a notice of hearing is sent to the registrant not later than 28 days before the date fixed for hearing and containing certain prescribed information. Rule 34 provides as follows:-

"Service of documents

34.-(1) Any notice of hearing required to be served upon the registrant shall be delivered by sending it by a postal service ... in which delivery or receipt is recorded to...

(a) ...;

(b) ...;

(c) ...

(i) her address in the register ...

(2) ...

(3) The service of any notice under these Rules may be proved by-

(a) a confirmation of posting issued by or on behalf of the Post Office..."

6. On 23 December 2009, an official of the NMC did send by Royal Mail recorded delivery an envelope containing a notice of hearing in prescribed form (including notice of the hearing dates, namely 7 to 9 December 2009) to the appellant at Lidgate Road, being her registered address. As a belt to the braces, the NMC also sent a duplicate copy of the notice in an envelope by ordinary first class post to the same address; but, since rule 34 expressly requires and makes reference to the method of recorded delivery, the duplicate letter does not seem to me to add much on the facts of this particular case.
7. The recorded delivery letter was returned by the Royal Mail to the NMC unopened. Endorsements and a sticker upon it seem to indicate that on 1 October 2009 it was not delivered or left at the address but, rather, some card or notification may have been left at the premises and the letter taken back to the post office. The sticker, dated 12.10.09, finally records "We were unable to deliver this item because" and then the box "Not called for" is ticked. Boxes such as "Addressee gone away" or "Refused" were not ticked.
8. The appellant, who acts in person, has solemnly said to me this morning, and has now expressly confirmed from the witness box on an oath sworn upon the Bible by way of formal evidence, that at all times up to 31 October 2009 she was indeed resident at Lidgate Road; that she never received any notice of hearing sent by ordinary first class post; that she was unaware of any attempt to deliver the recorded delivery envelope; that she never saw any card or document saying that there was one for collection by her at the post office; and that she lived in a house with eight flats but only one entrance so she did not have a personal or exclusive letterbox. She further says that on 31 October 2009 she moved to her new and current address at 42 Earlsthorpe Road, London SE26, but, since the NMC made no attempt to communicate with her between late September/early October 2009 and after the hearing itself, that is, on the facts, irrelevant.
9. I wish to stress that, although I have required and heard sworn oral evidence from her upon these matters, I do not at all fall into the trap of thinking that the essential issue at this appeal has anything to do with whether or not she actually saw, received or knew about the notice of hearing. The issue upon this appeal is entirely concerned with the approach and decisions of the committee to the question of service at the subsequent hearing on 7 December 2009, given her absence at that hearing. But patently, if the truth of the matter is that she did receive a notice or did know that the NMC was attempting to serve her by recorded delivery, then her failure to attend at the hearing would be entirely due to her own ignoring or avoidance of service, and the actual decision of the committee would be irrelevant. So my purpose in requiring her to give that oral evidence on oath was to establish, insofar as her sworn evidence does (I make no judgment at all as to the truth or otherwise of that evidence), that she did not in fact receive any notice or have any knowledge of the attempts by the NMC to give her notice.
10. At all events, the appellant did not respond to the notice and did not attend and was not represented at the hearing.
11. Rule 21 of the rules provides as follows:

"Absence of the practitioner

21.-(1) ...

(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."

12. It was pursuant to this rule that the committee decided to continue with the hearing in a passage now wholly contained on page 3 of the official transcript, now in the bundle at page A3. The case presenter was Mr Luke Clancy, an in-house solicitor advocate with the NMC legal team, who has also most ably and attractively appeared on behalf of the Council today. The legal assessor was Mr William Hoskins. Although laborious, I must, I think, read most of page 3 in full. After some preliminaries, the chairman, Ms Virginia Garnett, continued at page 3B to C:

"As the Registrant is not present, can the Case Presenter give us evidence that all reasonable efforts have been made in accordance with the rule to serve Notice of Hearing on the Registrant.

MR CLANCY: Thank you, Madam. A notice in respect of this hearing was sent to the Registrant's registered address on 21 September 2009 by recorded delivery and first class post. I can hand up a copy of that notice, a copy of a printout from the Wiser database which shows the registered address and a copy of the NMC's Recorded Delivery Book which shows that the item was sent. I should say that the Recorded Delivery Book indicates that the recorded delivery item was sent on 23 September. There is also a printout from the Royal Mail Track and Trace internet service, but that simply confirms that the item was returned to sender. Madam, notwithstanding that the item was returned, it is my submission that notice has been effected in accordance with the rules by sending the notice by first class post and registered delivery to the recorded address.

Madam, if you are satisfied that service has been carried out in accordance with the rules, you do have a discretion, of course, as to whether or not to proceed in the Registrant's absence. With regard to your exercise of that discretion, I will also hand up a copy of a case management form to the Legal Assessor. On that case management form the Registrant indicated that she did not intend to attend the hearing. I can also indicate that there are four witnesses to give live evidence who are in attendance today. The Registrant has not requested an adjournment and there is no information that she would be able to attend or wish to attend on another date. It is my submission that it would be in the interest of justice for the hearing to proceed today. Madam, if I can hand up the proof of posting and also a copy of the case management form. (Same handed).

LEGAL ASSESSOR: Madam, as you know the NMC's requirements concerning the service of Notice of Hearing are contained in Rules 11 and 34 of the 2004 Rules. The evidence before you includes a Notice of Hearing and I can advise you that the notice contains the required particulars, including the correct particulars concerned with today's hearing. I can also confirm it is addressed to the Registrant at her registered address according to the Wiser printout. The evidence produced also shows that the notice was sent by recorded delivery, at which date is more than 28 days before today. In the light of this evidence I am able to advise you that the Panel may be satisfied there has been service of Notice of Hearing in accordance with the rules.

THE CHAIRMAN: Thank you. The Panel is satisfied that the rules concerning service of the notice have been complied with. Ms Abigail Abiodun has not responded and in these circumstances the Panel directs that the hearing should proceed. Will Council's Officer please read out the charges.

After that, the charges were duly read out and the hearing proceeded.

13. In slight elaboration of, or in addition to, what the chairman said in that brief ruling, the written notice of the decision taken, which was dated 22 December 2009 and later sent to the appellant (now at bundle page (i)(1), records as the reasons to proceed in her absence:

"The panel is satisfied that the notice has been served in accordance with the NMC's rules and that it is in the public interest and the registrant's own interests to proceed in her absence today."

It is not apparent from the oral ruling why, or indeed whether, the Committee positively thought it was in the registrant's own interests to proceed that day.

14. In analysis of the passage which I have quoted from the transcript, I note the following. First, Mr Clancy correctly informed the committee of the history with regard to service, although neither he nor the legal assessor expressly drew the attention of the committee to the particular ticked box on the envelope, namely "Not called for". As I understand it, the envelope itself, although produced before me today, was not actually produced at the hearing and the precise reason why it had not actually been delivered but was returned to the NMC does not seem to have been referred to or explored at the hearing.
15. Second, Mr Clancy correctly told the committee that, if they were satisfied that service had been carried out in accordance with the rules, they then had a discretion whether or not to proceed.
16. Third, in asking them to proceed, he made some good points but (with respect to him) perhaps also some less good points. The good point was that four witnesses had attended to give live evidence that day. The less good points relate, first, to his reference to the "case management form". He said that on that form "the Registrant indicated that she did not intend to attend the hearing".
17. The case management form itself extends to nine relevant pages and is now in the bundle at pages B3 to 11. It is perfectly correct, as Mr Clancy said, that on the second page, namely bundle page B4, in answer to questions 2, 3 and 4, namely whether she wanted the allegation to be considered at a hearing, whether she intended to attend such a hearing, and whether she intended to be represented at such a hearing, she wrote "No", "No" and "No". However, under paragraph 10 of the case management form, and now at bundle page B7, there was a list of the witnesses whom the NMC proposed to call to give evidence in person and then a statement that:

"Please note that the NMC will rely on the letter from Mr Bruce-Tago dated 20.5.08."

Against that, the appellant wrote:

"I object to Mr Bruce-Tago letter being read as it was a fake name used by Theophilus. I shall be glad if Mr Bruce-Tago appeared in person to enable him [to] answer some questions."

Although Mr Clancy suggested this morning that that might be no more than a reference to Mr Bruce-Tago answering some questions put to him by the committee themselves, it does seem to me to be some indication that she herself desired and intended to be present so as to put the questions to Mr Bruce-Tago that she wished to have answered.

18. If one then turns to paragraph 22, now at bundle page B10, there is a reference to the possibility of parts of the hearing being held in private. In answer to the question "Do you intend to apply for all or part of your case to be heard in private?" she clearly wrote "yes". In answer to the question "If yes, please set out your reasons for making the application", she wrote:

"To enable committee to discuss/view this privately as Theophilus is doing all this action because of a relationship when he is legally married with kids."

It thus seems to me that by that answer she was, or may have been, indicating that there were matters that she wished to raise privately about the relationship that she had undoubtedly had with Theophilus Dzimega, and that she intended to ask for part of the case to be heard in private, which, of course, she could only do if she was present to make that application.

19. Finally, although perhaps the smallest of pointers, at paragraph 23 (also at bundle page B10) the case management form asked for a time estimate, taking into account various matters. It gave the NMC time estimate as two days. In the box for the registrant to give his or her time estimate, she wrote "3-4 days". If in truth she had no intention of attending, it is difficult to see how she could sensibly have contemplated a longer or different time estimate from that proposed by the NMC itself.
20. It thus seems to me that, although Mr Clancy was perfectly entitled to refer, as he did, to the answers "no" to questions 2, 3 and 4 on the form, there were those various other contrary indicators in the form that she in fact desired and intended to be present and actively to participate. Those contrary indicators were certainly not expressly drawn to the attention of the committee. It is perfectly true that at the very end of his submissions on this point Mr Clancy handed up a copy of the case management form, as the transcript records, but it is not possible to discern from the transcript whether the members of the committee themselves gave any sort of close attention to that form and all the answers upon it (and, as I have said, it extends to nine pages) before considering and ruling on this matter.
21. The other perhaps less than good point (with respect to him) that Mr Clancy made was when he said "the registrant has not requested an adjournment and there is no information that she would be able to attend or wish to attend on another date". That would, of course, have been highly relevant if there was reason to suppose that she had in fact received the notice. But since the one known fact was, and is, that the envelope containing the notice, which was sent by recorded delivery, had been returned unopened to the NMC, the fact that she had not requested an adjournment or asked to attend on another date of course begs the very question of whether she received any notice or had any knowledge of the actual date.
22. Fourth, the legal assessor did correctly advise or direct the committee as to the relevant rules; that the notice of hearing was in correct prescribed form as required by rule 11; and that the panel may be satisfied that there had been service of notice of hearing in accordance with the rules.
23. However, fifth, the legal assessor, unlike Mr Clancy, did not give any advice or direction at all as to the separate exercise of discretion. He said simply:

"... the Panel may be satisfied there has been service of Notice of Hearing in accordance with the rules."

He failed to give any direction at all that the effect of being so satisfied is simply to open the door to the exercise of a discretion under rule 21(2)(b) which employs the words "may ... direct", and he gave no guidance as to how the committee should approach that exercise of discretion. Since authority, to which I will shortly refer, makes plain that in this sort of situation a discretion to continue in the absence of the "accused" must be exercised with the "utmost caution", that seems to me to have been a significant omission from the advice given by the legal assessor.

24. Sixth, there is no indication from the transcript that the committee broke off or adjourned at all to consider the matter and Mr Clancy has very fairly said that if they had done so the transcript would have said so, although there may have been some whispered discussion (not noted on the transcript) between the three members of the panel within the hearing room between the end of the advice from the legal assessor and the ruling by the chairman.
25. Generally, however, it seems to me that the chairman moved very rapidly to their ruling and the fact that there is a single passage beginning with the words "thank you", which one would expect to follow spontaneously immediately after the advice from the legal assessor, and continuing immediately to record the ruling itself, tends to suggest that any discussion between the members of the committee must have been brief indeed.
26. Seventh, as to the ruling itself, there is little to indicate that the committee themselves appreciated that rule 21 requires a distinct two stage process: first, whether the committee were satisfied that the notice of hearing had been duly served; and, second, and if so, as to the exercise of a discretion.
27. Eighth, in so far as the committee did exercise a discretion, the only expressed reason given orally on the day was that "Ms Abigail Abiodun has not responded". That was hardly surprising since the evidence was that, for whatever reason, the notice of hearing had been returned undelivered and unopened.
28. The approach to situations of this kind is now the subject of high authority. I refer first to the decision of Munby J in Yusuf v The Royal Pharmaceutical Society of Great Britain [2009] EWHC 867 (Admin), given or handed down on 28 April 2009. As its name indicates, that case concerned an appeal by a pharmacist from a decision of the Disciplinary Committee of The Royal Pharmaceutical Society of Great Britain, but plainly a similar approach must apply to the similar disciplinary committee of the NMC.
29. In paragraphs 31 to 40 of his judgment, Munby J dealt with the decision of the committee in that case to proceed in the absence of the appellant in that case. At paragraph 33 he quoted a passage from the judgment of Rose LJ in the criminal case of R v Hayward, including the words:

"That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented."

In the continuing part of the quotation, Rose LJ set out at some length a long list of circumstances or factors that need to be weighed and considered.

30. At paragraph 34, Munby J referred to the observations of Lord Bingham of Cornhill in another criminal case, R v Jones (Anthony), that "the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution".
31. At paragraph 36, Munby J said, and I will accordingly accept without further inquiry, that that jurisprudence, albeit developed in the course of criminal cases, was applied to the disciplinary proceedings of professional bodies by the Privy Council in the case of Tait v Royal College of Veterinary Surgeons.
32. At paragraph 38, Munby J dealt with the approach of the committee in the Yusuf case on the facts of that case. He said that that committee had "directed itself impeccably in accordance with R v Jones (Anthony)" and that the committee "proceeding as it said with the 'utmost caution', was entitled to conclude, and for the reasons it gave, that it was proper for it to proceed in the absence of the appellant."
33. The actual course of the proceedings before the Committee and its ruling in that case was summarised by Munby J in paragraphs 14 and 15. It appears from paragraph 14 that the Society's counsel referred expressly to the decision of the House of Lords in R v Jones (Anthony), whereas I note that no authority was referred to at all in the present case. The reasons of the committee for their decision to proceed in the absence of the appellant in that case apparently ran to "some three page three pages of transcript". The committee cited from the speech of Lord Bingham of Cornhill R v Jones (Anthony). The chairman rehearsed in considerable detail the facts relating to the application for the adjournment and, in a passage quoted verbatim by Munby J, expressly said:

"We recognise that the discretion to proceed in his absence is one which must be exercised with the utmost caution, but in this particular instance, having considered all the circumstances, we think it is proper for us to proceed in [the appellant's] absence."

34. Pausing there, it is in my view important to stress that reference by committees or tribunals such as this, or indeed judges, to exercising the discretion to proceed in the person's absence "with the utmost caution" is much more than mere lip service to a phrase used by Lord Bingham of Cornhill. If it is the law that in this sort of situation a committee or tribunal should exercise its discretion "with the utmost care and caution", it is extremely important that the committee or tribunal in question demonstrates by its language (even though, of course, it need not use those precise words) that it appreciates that the discretion which it is exercising is one that requires to be exercised with that degree of care and caution. That is conspicuously lacking from the brief consideration given to the exercise of discretion in the present case, as I have already quoted.
35. The other authority to which it is necessary and appropriate to refer is the decision of the Court of Appeal in Jatta v Nursing and Midwifery Council [2009] EWCA Civ 824, given on 8 July 2009. This, of course, concerns the very disciplinary body to which the present appeal relates. The facts of that case were a little unusual in that the respondent nurse had expressly told the NMC that he would be abroad at the material time and that any notice sent to his registered address would not reach him, and had asked them to communicate with him rather by email. They had said that they could not or would not communicate by email and went on to send the notice of hearing to the registered address from which, as one reads from paragraph 18 of the judgment of Lloyd LJ, it was returned undelivered. Lloyd LJ added:

"... it seems that it was also sent first class, and that copy no doubt languished for some time at the address in Didcot [namely the registered address]."

But plainly the letter sent by ordinary first class post was no more received by the respondent himself in that case than was the letter sent by recorded delivery and returned undelivered.

36. On appeal, the High Court Judge, Beatson J, had concluded that on the unusual facts of that case there had been a failure to comply with the requirements of service under rule 34 and accordingly that rule 21(2)(a) was not itself satisfied; and accordingly that the committee should not have been satisfied as rule 21(2)(b) requires that the notice of hearing had been duly served; and accordingly should never have even reached the stage of an exercise of discretion. The Court of Appeal disagreed with that and considered that there had been due compliance with the rules. At paragraph 31, Lloyd LJ said:

"It is a fair comment that the process of giving notice was followed in what could be described as a mechanical fashion [a phrase used by Beatson J], 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."

Accordingly, within paragraph 32, Lloyd LJ said:

"As a matter of law, it seems to me that the judge's added requirement [namely some resort to the use of email in that case] 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."

37. It is therefore extremely important to grasp that the issue on the facts of that case really had little or nothing to do with the exercise of the discretion, but entirely turned upon whether the primary requirements as to had been service complied with and established so as to open the door to the exercise of a discretion.
38. In relation to the approach to the exercise of discretion itself in that case, Lloyd LJ said between paragraphs 32 and 33:

"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.

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."

39. One cannot glean from the judgment of the Court of Appeal in that case the actual terms in which the legal assessor had advised the committee, but at paragraph 20 Lloyd LJ said:

"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."

Paragraph 20 immediately continues by saying:

"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."

Paragraph 20 then continues with a quotation showing that the chairman of the committee on that occasion, after the adjournment of 40 minutes, gave their reasons at some length for exercising a discretion to proceed. On the facts of that case, which, as I have said, were unusual, the chairman said:

"... he has had every opportunity to find out the date of this hearing and has chosen not to do so."

At paragraph 21 of his judgment, Lloyd LJ said:

"It is evident from the transcript that the panel took great care over this preliminary question."

40. I wish to make quite clear that, on the basis of the authority of the Court of Appeal in Jatta, I am satisfied that there was due compliance with the rules as to service in the present case notwithstanding that the recorded delivery envelope was actually returned unopened and undelivered. That is also what happened in the case of Jatta (see paragraph 18 of the judgment of Lloyd LJ) and if the fact that the recorded delivery envelope was returned undelivered in that case did not have the effect that there had not been due compliance with the rules as to service, then I do not see how it could have that effect in the present case. So, as I in fact said a considerable time ago, I proceed on the basis that the legal assessor did correctly advise or direct the committee that there had been due service of the notice of hearing in accordance with the rules; and the committee were indeed entitled to accept that advice and reach their own conclusion that "The Panel is satisfied that the rules concerning service of the notice have been complied with."
41. But it seems to me, with respect to the committee on this particular occasion, that their approach to the separate and distinct issue of the exercise of their discretion was perfunctory and inadequate. They did not have the advantage, as the committee had had in the Yusuf case, of being clearly advised by their legal assessor of the authorities of the Privy Council and of the House of Lords, and of the need to approach the exercise of discretion with the utmost care and caution. They had not even had clear advice from their legal assessor (albeit that Mr Clancy correctly severed out the two stages) of the need for a subsequent exercise of discretion even after they were satisfied that there had been service of notice of hearing in accordance with the rules. In contrast to the case of Jatta, where the committee considered the question of discretion for no less than 40 minutes, this committee seems to have leapt straight to making its ruling.
42. So it seems to me, in summary, that this committee did not approach the exercise of discretion with the utmost care and caution or indeed any care at all. The only reason that they gave for proceeding was the self evident fact that the registrant had not responded, which obviously follows if the formal notice of hearing has been returned undelivered and unopened. They may (although they did not say so) have been influenced by Mr Clancy's reliance upon the answers "no" where they appeared to questions 2, 3 and 4 of the case management form, and may not have considered or even been aware of the other answers to which I have drawn attention on that form which may tend to indicate a desire and intention on the part of the registrant to be present at the hearing when it took place.
43. All in all, albeit with the utmost regret, I have come to the clear decision that there was simply no proper exercise of discretion by the committee at all, on the facts and in the circumstances of the present case, as to whether it was appropriate to continue in the absence of the registrant. It does not seem to me possible or appropriate for me now, at this stage, to reach a reliable discretionary decision of my own to the effect that in any event this hearing should have proceeded. Accordingly, albeit with regret, because I am conscious of the delay, inconvenience and expense that will now be involved, I have come to the conclusion that there was a fatal procedural defect in the approach of the committee to this case. This appeal must be allowed and the whole matter reheard by the Conduct and Competence Committee of the NMC from scratch.
44. By her notice of appeal to this court and other documents, the appellant relied also on two further separate and distinct grounds. The first is, in essence, that the approach of the committee to the evidence that Mr Dzimega gave in his oral evidence was defective in that her own case, as set out in her documents, was not sufficiently explored with him in cross-examination. I say in a sentence that I completely reject that ground of appeal. There is a passage in the transcript at internal pages 25D to 27C in which Mr Clancy sufficiently and entirely appropriately put to him the essential ingredients of the appellant's case. But Mr Dzimega firmly reiterated and stuck to his account that he had not been involved at all in the preparation of the references and that she (who was in a relationship with him at the time) had access to his computer at his home and must have prepared them herself there.
45. The third and last ground of appeal is that the decision of the committee actually to strike her off was unnecessarily severe and inappropriate. I also completely reject that ground of appeal. The committee carefully and distinctly considered the question of sanctions during an adjournment of nearly 50 minutes, and clearly explained at paragraphs 44 and 45 of the transcript why none of the less serious sanctions were appropriate in this case. In summary, they said at transcript page 7H to 8A (bundle pages 44 and 45:

"... the Panel took the view that the misconduct in this case was fundamentally incompatible with continuing to be registered with the Nursing and Midwifery Council. Accordingly, the Panel considers that the only proportionate sanction in this case is a Striking-Off Order. The Panel considers that this Order is necessary for the protection of the public. It also considers that confidence in the Council would be undermined if this Registrant were not struck off in the light of the misconduct which the Panel has found proved."

46. In their written reasons at page 5 of the formal notice, dated 22nd December 2009, given to the appellant, they made plain that they had considered the sanctions by beginning with the least serious sanction available and working upwards as appropriate, and explained, as they had done orally, that the only proportionate sanction in this case is a striking-off order. It seems to me that honesty and integrity is fundamental to any professional person such as a nurse. I appreciate that in argument today the appellant has doggedly maintained that she did not do the acts or display the dishonesty alleged and proved. That being so, she has difficulty in considering with any objectivity the appropriateness of the sanction of striking-off if, as they were, the allegations and dishonesty were found proved. But if a registered nurse dishonestly fabricates not one but two references, and fabricates altogether the name of one non-existent referee in support of an application for a nursing job, then it seems to me to have been well within the discretion of this committee to decide that the only possible sanction was striking-off. So, the second and third grounds of appeal completely fail but, for the reasons I have given, this appeal will succeed and be allowed on the first ground.
47. Now, Mr Clancy, an order will have to be drawn to give effect to that, but, unless the associate suggests otherwise, I would have thought it is very simple and you and the associate could very easily devise a form of words. The essence of the matter is I have allowed the appeal and I direct, it is appropriate to direct, that this matter be reheard by the Conduct and Competence Committee of the Nursing and Midwifery Council.
48. MR CLANCY: Yes, my Lord. Article 38 of the Nursing and Midwifery Order 2001, which is at page 40 behind tab C, there are four options on appeal set out and my understanding of your Lordship's judgment --
49. MR JUSTICE HOLMAN: I am allowing the appeal and quashing the decision appealed against, am I not?
50. MR CLANCY: And, (3)(d), remitting the case to the Practice Committee concerned to be disposed of in accordance with the directions of the court, which those are actually essentially being that the matter be reheard.
51. MR JUSTICE HOLMAN: Well, I am allowing the appeal. I am quashing the decision appealed against. I am remitting the case to the Practice Committee concerned and the only direction that I am giving is that the matter be reheard afresh, on, obviously, fresh due notice to Mrs Raheem. But would you be able, with the associate, to draft a form of words that puts that in appropriate form?
52. MR CLANCY: Certainly, my Lord.
53. MR JUSTICE HOLMAN: You trailed this morning costs, but plainly you would not be able to succeed on an application for costs.
54. MR CLANCY: No, my Lord. I would ask that the order be no order for costs.
55. MR JUSTICE HOLMAN: That will be my order.
56. All right. Well, Mrs Raheem, I hope you understand all of that. The effect of that is that the present decision is quashed. They will no doubt wish to proceed immediately again. You have to keep in touch with them. They have to keep in touch with you. So there will be a fresh hearing on a date and it is all up for complete reconsideration afresh. I have no idea what will emerge, but you will not forget that the only basis on which I have allowed this, although important and fundamental, is the failure properly to exercise a discretion whether or not to proceed in your absence.
57. THE CLAIMANT: Yes, my Lord.
58. MR JUSTICE HOLMAN: All right. Mr Clancy, you, as I said, argued the case with great clarity and extremely attractively and I have been truly grateful to you and those supporting you today. Thank you very much. Please do not go away feeling chastened, even though I am not sure that all the points you made in that passage were good ones. But it is easy later, with the advantage of hindsight and a whole day to think about these things; and on the hoof one makes one's points and they look good at the time. So please, please do not feel that I am critical of you, because I am not. I am in fact very respectful of you.
59. Thank you both very much indeed.