England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HH Judge Anthony Thornton QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 June 2012

His Honour Judge Anthony Thornton QC:

1. Introduction

1. Eunice Fabiyi ("EF") is appealing the decision of a Panel of the Conduct and Competence Committee ("CCC") of the Nursing and Midwifery Council ("NMC") dated 3 December 2010 striking her off both the midwifery and nursing parts of the register of the NMC, a prohibition from applying for restoration until five years after the date that the decision had taken effect and an interim suspension order for a period of 18 months from 3 December 2010. This appeal is a statutory appeal to the High Court brought under article 38 of the Nursing and Midwifery Order 2001 ("the 2001 Order").
2. EF had been charged with dishonesty in working as a midwife in a non-supernumerary role on 7 separate dates in July and August 2008 whilst on a period of supervised practice that had begun on 2 June 2008. She was also separately charged with working in a non-supernumerary role on 25 September 2008. This charge was not linked with that of dishonesty. The charges were cumulatively alleged to have amounted to misconduct such as to impair her fitness to practice. EF admitted the 8 charges of non supernumerary working but denied the charge of dishonesty in relation to any of the 7 instances of such working to which that charge related. She therefore did not admit that her fitness to practice had been impaired by reason of her misconduct. EF was neither present nor represented at the hearing and the panel found the charge of dishonesty to be proved, that that finding coupled with her admitted unsupervised non supernumerary working on the 8 charged instances showed that her fitness to practise was impaired by reason of that misconduct and that, in consequence, EF should be stuck off both the midwifery and nursing parts of the NMC register.
3. EF's appeal is against the finding of dishonesty and the consequent findings of unfitness to practice and striking off which were, for obvious reasons, heavily reliant on that finding. EF does not need permission to bring her appeal to the Administrative Court. The appeal is brought on the basis that there had been significant procedural irregularity in the hearing and that the findings of the panel were undermined by significant errors of law so that, in consequence, the panel's decision was wrong and should be set aside. In relation to the striking off order, EF also contends that that sanction was disproportionate whether or not the findings of dishonesty, misconduct and unfitness to practice are upheld.
4. The factual and procedural background to this case is complex. It is therefore necessary to set out the relevant background facts, regulatory framework and procedural history of the disciplinary process in some detail before considering the wide-ranging grounds of challenge to the CCC's findings.

2. Factual Background

5. In May 2008, EF was aged 59. She qualified as a Registered Nurse in 1973 and as a Registered Midwife in 1977. She registered as a midwife with the London Local Supervising Authority ("LSA") on 30 April 2002 in consequence of her starting employment on the postnatal ward within University College London Hospital ("UCLH") which was located within the area of that LSA. She started work in UCLH as a Band 6 midwife on 29 April 2002. She was promoted to a Band 7 midwife on 18 April 2005 and in 2007 was moved to the labour ward where she worked as a midwife co-ordinator. As such, she ran the shifts that she was working as the most senior midwife on duty and part of her role was to support students and newly qualified midwives. Her contracted work involved her working 34 hours per week on either three long day shifts or three night shifts. She also voluntarily worked some additional paid shifts within the hospital.
6. EF was supervised by two separate individuals. Her work was managed by the labour ward manager who was a midwife employed by UCLH. This manager, like the other managers within UCLH, was employed by the University College London Hospitals Trust ("the Trust") and was answerable to the head of midwifery. EF's midwifery was supervised by a supervisor of midwives ("SOM") who was nominated by the LSA and who was not directly employed by the Trust. Each LSA is responsible for a separate geographical area and, within its own area, it is responsible for ensuring that the quality of service provided by midwives is maintained. This is achieved through a system of SOMs who provide supervision and support for every midwife by promoting good practice and ensuring that the midwives they are supervising remain fit for practice. SOMs are independent of the midwife's employer and each SOM supervised about fifteen midwives.
7. EF's SOM since 2003 had been Ms Debra Kroll who had got to know EF well as a result of the formal annual supervisory contact and the occasional informal contact that she had had with her. Ms Kroll is a highly experienced midwife who qualified in 1981 and who became an SOM in 1994 within the London LSA. She was jointly employed as a midwifery lecturer in practice by City University and the Trust as a lecturer in practice and as a clinician based within UCLH. EF would raise with Ms Kroll during her supervisory contacts with her any concerns that she had about her practice and Ms Kroll's view was that she found EF to be responsive to her advice about these concerns.
8. EF's husband died in August 2007 and she felt it necessary to provide financial support for her four adult children that she had not been providing prior to his death. In consequence, she decided to take on additional shift working outside her work within the UCLH Trust. In order to obtain these additional shifts, she registered with two nursing agencies, the Mayday Healthcare Plc and MSI Group Ltd agencies. The evidence suggested that a midwife registering with an agency was asked questions about their entitlement to practice and, if those questions were answered satisfactorily, was not thereafter asked questions to establish that that registrant continued to be entitled to practice unsupervised. Furthermore, the agencies did not impose on registrants who were registered in their records as being available for agency work an obligation to inform the agency if and when they were placed on supervised practice.
9. Ms Kroll stated in her statement that she was aware that EF was undertaking agency shift working outside the UCLH but was unaware of the details of that additional work although she had tried to discourage her from working too many hours. However, Ms Kroll did not take any direct action since she considered EF to be a responsible adult who was aware of her responsibilities towards the UCLH Trust and its female and infant patients. The evidence showed that EF worked 16 separate agency shifts in Watford General Hospital and Basingstoke Hospital between 30 December 2007 and 27 April 2008. All of these shifts were supplied to her by the Mayday agency. Watford General Hospital is in the London LSA and Basingstoke Hospital is in the South Central LSA. EF also worked a number of extra shifts in the period between January and May 2008 for the UCLH. Many midwives at UCLH called these extra shifts worked by UCLH midwives "bank shifts" but EF's evidence was that she always referred to these shifts in the same way as she referred to her external shifts by calling them all "agency shifts". It was never suggested to EF in her various interviews with Ms Kroll and others that that terminology was never used at UCLH. Moreover, Ms Kroll referred to one of the external shifts that EF worked as a "bank shift"^[1]. Thus, the evidence did not clearly demonstrate that within UCLH, the phrase "agency shift" was only used by all midwives when referring to external additional shifts or that the phrase "bank shift" was similarly the only phrase used to refer to internal additional shifts.
10. In about April 2008, a complaint about EF's practice in one of the external hospitals she had worked in was investigated and those concerns were brought to the attention of another SOM at UCLH, Ms Rena Meinyczuk. Soon afterwards, on 26 April 2008, EF showed lack of skill in reviewing a suspicious CTG in a timely manner as part of her co-ordinator duties at UCLH. Ms Meinyczuk undertook an LSA supervisory investigation within the NMC's supervisory guidelines and identified practice deficiencies that had occurred during EF's work at UCLH and a further deficiency that had occurred and had been the subject of a formal complaint whilst her investigation was being undertaken. This second complaint was identified as having resulted from a practice deficiency in which EF had failed to notify a suspicious CTG to other more senior colleagues. The investigation led to Ms Meinyczuk recommending to the London LSA in a report dated 30 May 2008 that EF should be placed on an initial three-month period of supervised practice involving 450 hours of supervised working. The stated objectives of this proposed regime were for EF to update her knowledge, experience and decision-making skills in a supernumerary capacity. At the end of that period, EF would be reviewed and if the aims and objectives of her supervised practice had not been met, a further three-month period of supervised practice would be undertaken with the aim of achieving those objectives. Before this recommendation could take effect, it had to be accepted by the acting LSA Midwifery Officer, Ms Olive Jones who approved the recommendation. EF's period of supervised practice took effect on 2 June 2008.
11. Supervised practice was introduced by the NMC as part of its statutory function of setting rules and standards within the midwifery profession. The purpose, intended outcomes and method of operation of supervised practice are set out in the document issued by the NMC in September 2007 entitled: Standards for the supervised practice of midwives. It was, therefore, a compulsory employment process that had only just been introduced for midwives when EF was placed on supervised practice on 2 June 2008 and the evidence shows that, at UCLH, it was a practice which was not at that time properly understood, applied or taken sufficiently seriously by midwives working at UCLH.
12. The NMC guidance makes it clear that supervised practice is intended to provide developmental support whilst a midwife is working. That support is to be provided by an employer-led development programme containing learning outcomes identified by both educational and clinical guidance facilitated by the midwife's SOM and mentors appointed for that midwife whilst on supervised practice. The NMC guidance makes it clear that supervised practice is intended to develop competence within employment. It further advises that where an investigation concerned with the introduction or implementation of a period of supervised practice identifies serious misconduct, such as a deliberate failure to deliver adequate care or to keep proper records, a referral should immediately be made directly to the NMC.
13. EF's supervised practice was to be carried out in this way. Whilst she was subject to a supervised practice regime, her work was confined to the work set out in the clinical support plan that she was provided with at the outset of this supervised practice regime. This programme of work would be monitored and assessed and it was intended that the outcome would be the elimination of the shortcomings in her work as a midwife that LSA investigation had identified. EF was forbidden to work unsupervised or as a co-ordinator of midwives on the ward whilst undertaking supervised practice. In this period, she also became a supernumerary midwife, being one who did not count towards the number of midwives required to work on the labour ward at any one time. EF was allocated two mentors who would supervise her work and she was only able to work day shifts. Whilst working in this period, her loss of earnings resulting from this revised pattern of working within UCLH would be made up by her employer. The period of supervised practice would be signed off by EF's supervisory mentor, her SOM Ms Kroll, following satisfactory assessment of her competence. If further incidents of unsafe practice occurred during the period of supervised practice, these were to be reported to the appropriate officer within the London LSA and this could lead to new learning outcomes or a referral to the NMC. The NMC's guidance document stressed that information relating to investigations, outcomes and supervised practice should be confined to a "need to know basis only" in order to protect the midwife. EF was told by Ms Kroll and Ms Melnyczuk on five occasions in the early stages of her working to this regime that she could not undertake agency work in that period.
14. EF had been warned in a letter that Ms Melnyczuk sent her on 26 May 2008 that she was to be recommended for supervised practice to enable her to remedy the shortcomings in her practice that had been identified by the two instances of such shortcomings that had recently been investigated. On 1 June 2008, Ms Melnyczuk emailed EF with a revised copy of the aims and objectives section of her clinical support plan and stated in the covering email:

"Eunice as discussed just to reiterate that you cannot do agency work while on supervised practice."

The principle issue arising in this case is whether "agency work" that EF was being prevented from undertaking whilst on supervised practice was agency work in hospitals both within and anywhere outside the Trust, as the NMC contended, or only agency and bank work within the Trust as EF contended. Indications of this possible ambiguity are provided by Ms Kroll's witness statement which states, erroneously, that Ms Melnyczuk's email had stated that EF could not work via "an agency or on the bank" whereas the email itself only refers to agency working and makes no mention of bank working. Ms Kroll stated in evidence that the reason that she had made it clear to EF that she was not to work either bank or agency shifts was because:

"... bank was internal, agency was outside".^[2]

However, Ms Kroll herself used the term "bank" on occasion to refer to outside agency work^[3] and EF's position throughout was that she always referred to both internal and external extra-contractual shift working as agency working and did not use the term "bank" when referring to extra voluntarily worked shifts within the Trust.

15. Between 2 June 2008 and 20 July 2008, EF was offered 20 agency shifts by the Mayday agency at the Watford General Hospital which is in the East of England LSA. EF accepted these offers and worked these shifts without complaint whilst she was on supervised practice and none of them was ever made the subject of a complaint to, an investigation by or an allegation to or from the Trust as EF's employer, the London LSA as her supervising LSA or the NMC as her regulator.
16. Ms Kroll met with EF on 3 June 2008 for the purpose, as her file note of the meeting stated, of clarifying with EF that she understood what being put on supervised practice meant and to explore with her why this decision had been taken. The discussion, as Ms Kroll recorded it in her personal post-meeting file note, covered who was to mentor EF and how their supervision of her would work and the requirements that she would be a supernumerary during this period, could not undertake co-ordination work and was not to take on any work independently. EF's objectives were gone through and there was a discussion as to how these could best be achieved. Ms Kroll stated that they would meet on a weekly basis and that EF's manager would be kept in the loop. At the end of the note, Ms Kroll had typed in bold:

"Debra reminded Eunice that she was not allowed to do any bank or agency shifts during this period."

17. Ms Kroll and EF met for the second time on 8 June 2008. Her two mentors were also present. They discussed her first week of supervised practice and Ms Kroll reminded EF to complete a reflective diary and a record of their conversations. Ms Kroll's file note ends with a passage in bold which included this passage:

"[I] reminded [EF] that she needed to stay on day duty and not do any agency."

18. On 18 June 2008, EF emailed Ms Kroll complaining that the ward manager had emailed Ms Melnyczuk with the erroneous statement that EF did not know who her mentor was. Ms Kroll emailed back explaining what the role of mentor entailed. Her email contained this passage:

"Supervised practice means that you HAVE TO work alongside another midwife at all times. You are not allowed to take cases on your own. I was told that you were working in theatre on your own yesterday unsupervised. I believe this is why there was a query about whether you understood the nature of supervised practice."

Ms Kroll's evidence was that she later had a general discussion with EF during which she reiterated that EF had to work alongside a midwife at all times. Ms Kroll formed the impression during this discussion that EF did not fully understand this and that the co-ordinators of the labour ward did not really understand this either.

19. In the period between 30 July 2008 and 16 August 2008, EF continued taking on agency shifts offered her by the Mayday agency. These shifts are the subject of the allegation before the CCC and they followed on from the 20 agency shifts that she had worked at the Watford General Hospital which do not form part of the allegation. Three of these shifts were worked at the Queen Elizabeth Hospital and one at the Whittington Hospital, both of which are located in the London LSA. It is noticeable that, in a letter to Ms Olive Jones, the London LSA officer, dated 20 August 2008 reporting on these agency shifts, Ms Kroll refers to the shift EF worked at the Whittington Hospital on 8 August 2008 as "a bank shift". The other three agency shifts that EF worked in this period were worked at Wexham Park Hospital in Slough which is within the South Central LSA. These shifts were worked on the 3, 11 and 16 August 2008.
20. On 18 August 2008, one of the SOMs at Wexham Park Hospital phoned Ms Kroll to inform her that EF had worked an agency shift there via the Mayday agency on 11 August 2008. This had come to light, according to Ms Kroll, because EF had submitted her intention to practice ("ITP") form to Wexham Park Hospital on 11 August 2008.
21. There was little evidence about ITP forms and the obligations imposed on a midwife in relation to the contents of these forms. Such evidence as there was showed that, in 2009, the ITP form was filled out by a registrant and signed by that registrant's SOM. The signed form provided evidence that the registrant was currently registered by the NMC as a midwife and it informed the local LSA of that midwife's intention to practice in its geographical area. A signed form therefore had to be submitted by the registrant to her local LSA on an annual basis since it had to be renewed annually and that registration was added to the national LSA database. A registrant who undertook agency work in a different LSA area from the local LSA with whom she was registered had to register in that local LSA as well. Thus, on the first occasion when she worked an agency shift in that new area during the currency of her ITP, the registrant had to provide to the appropriate SOM in the hospital where she was to work with a copy of her ITP and that SOM would register her intention to practice within that local LSA on the LSA database. The evidence showed that the ITP form did not record, for any registrant on supervised practice, that that registrant was on supervised practice and, in any case, there was no evidence that the ITP form was susceptible to being amended and re-issued during the period of time that it was in force. However, the LSA placed a record on its database against the name of any midwife on that database that she was on supervised practice whilst that practising mode was in force. This was recorded by a capital "S" being placed against that registrant's name on the database. In 2008, this database, and the record of who was on supervised practice, was only accessible to SOMs.
22. In EF's case, her shift at Wexham Park Hospital on 11 August 2008 was the first shift she was to work within the South Central LSA during the currency of her 2008 ITP and it would appear that she provided the Hospital with a copy of her ITP which was handed on to the SOM in that hospital at a time when she was on holiday and that SOM was only first able to deal with the form on her return from holiday on 18 August 2008.
23. The SOM, on receipt of a copy of a registrant's ITP, would log EF's details onto the LSA data base. The SOM at Wexham Park Hospital therefore discovered on 18 August 2008 that EF was on supervised practice and it was that discovery that prompted her call to Ms Kroll since she was registered as EF's supervisor.
24. The evidence did not explain how EF was able to work 20 separate shifts at Watford General Hospital between 2 June 2008 and 20 July 2008, even though the Watford General Hospital is in the East of England LSA, without her supervised practice status being picked up or why her working these external agency shifts was not included within the scope of the allegations that the NMC brought against her.
25. Ms Kroll immediately called a meeting with EF that was also attended by Ms Sue Beatson who was a Divisional Senior Nurse and was representing the UCLH management. Ms Kroll informed EF that the meeting was to inform her of a serious allegation of gross professional misconduct before it was formally investigated. In answer to questions from Ms Beatson, EF stated that she had worked agency shifts whilst on supervised practice, that she had informed the MSI agency but not the Mayday agency that she could not work and that she was not supervised during these shifts. Ms Kroll then told EF in terms that she was not to do any unsupervised work or any agency shifts anywhere but that she was not being suspended pending the formal investigation that might take place. EF accepted these instructions and explained that she had understood that the restrictions on her practice only applied to her work within the Trust and that she remained free to undertake agency shifts outside the Trust. Ms Beatson informed Ms Kroll after the meeting that the Trust was not suspending EF because the unsupervised working had occurred outside UCLH but the matter would be investigated by UCLH in line with its disciplinary policy. Ms Kroll, in turn, initiated an LSA investigation.
26. Ms Kroll contacted Ms Suzie Cro who was the SOM of the South Central LSA who was investigating EF's unsupervised working at Wexham Park Hospital. They agreed to undertake a joint LSA investigation of EF's unsupervised working. EF explained at great length to the investigation why she had undertaken external agency work during her period of supervised working. One passage in the notes taken of her interview by the three SOMs carrying out the investigation^[4] highlights her evidence on this crucial issue:

"Q. What led you to seek employment with agency outside London LSA when you were on supervised practice?

A. I thought the focus was on work at UCLH – that was where I needed to be supervised. I thought I could not do agency work at UCLH but could do it elsewhere."^[5]

27. In the course of that investigation, it became clear that, although EF had been told on several occasions in the early part of her period of supervised practice that she could only work when supervised and was not to undertake agency work, there was no clear written evidence that EF had had it spelt out to her that she was not to undertake external agency work or that she was not telling the truth when she explained that she thought that the supervised practice requirements of constant supervision whilst working only applied to her work for and within the Trust. It was also clear that the rules relating to this relatively new method of practice development had not been adequately disseminated, properly understood or fully implemented by and within UCLH in general and had not been understood by EF in particular.
28. These shortcomings about the knowledge and practice of UCLH midwives relating to supervised practice were demonstrated in a number of ways. Several are highlighted in the evidence. Thus:

(1) Supervised practice was still in its infancy having only been introduced in 2007. This method of working, its objectives and the manner in which they were to be achieved were explained clearly and in detail in the NMC guidance booklet entitled Standards for the supervised practice of midwives published in September 2007. The booklet was in a format that enabled it to be made available in hard copy to every registrant when placed on supervised practice and it had been intended that that would always occur at the outset of any period of supervised practice. Regrettably, UCLH did not provide this booklet to any of its midwives, particularly EF, when embarking upon a period of supervised practice. Indeed, the report of the Trust's disciplinary investigation of November 2008 as to whether EF should be sanctioned or dismissed made two general recommendations to the Trust, namely that all staff when embarking on a period of supervised practice should be provided with a copy of the NMC booklet relating to supervised practice and that supervised practice letters should be reviewed so as to include a section on agency working.

(2) EF had not, in consequence of not being provided with a copy of this booklet and had not therefore seen the clear guidance it contained that included, in section 3.3, a section that spelt out in terms that, a midwife whilst on supervised practice should not practise within any other LSA until such time as the supervised practice had been completed successfully. It also stated that if midwife was working for more than one employer at the time of starting supervised practice or at any time during that working regime being in force, she was responsible for keeping all of them informed of her status regarding the need for supervised practice.

(3) As a result of the discovery that the entry on the LSA database that a registrant was on supervised practice was only accessible to a SOM and not to anyone with a need to know that fact, Ms Jones made a recommendation to the LSA that that information should be uploaded automatically onto the generally accessible NMC database as soon as it was entered onto the LSA database. This recommendation was made by Ms Jones in order to remedy what she described as the loophole that EF's case had identified.

(4) Both Ms Kroll and Ms Jones in their evidence referred to the widespread lack of knowledge amongst midwives employed within the Trust about the aims and importance of supervised practice. Indeed, Ms Jones stated in her evidence that new documentation was introduced in November 2008 explaining how supervised practice should be undertaken, monitored and supervised and that when the midwifery department moved into their new building, also in November 2008, she introduced a new strategy and action plan to address system weaknesses within supervised practice. Her concerns included the obvious fact that midwives did not take supervised practice very seriously and mentors did not devote sufficient time to the midwives they were mentoring and were prone to leave them unsupervised during periods of supervised working.

29. It is also clear that Ms Kroll did not consider that EF had been able to comprehend why she had been placed on supervised practice, how she should perform that method of practice and why it was both necessary and beneficial for her to complete the regime satisfactorily. This passage in her oral evidence to the CCC when answering a question from one of the Committee members clearly identifies her views of EF's levels of comprehension and engagement with supervised practice:

"Q. … is it reasonable [to suppose] then that she did not understand the objectives of supervised practice… ?"

A. I was surprised that she did not understand but … midwives get very frightened when they get t supervised practice. I think it is quite a shock when somebody says to you, actually you are not safe to practice, which is effectively what we are saying. I think in her case, she just shut down., she could not hear what two of us, effectively, two supervisors of midwives who she knows very well, myself and Rena Melnyczuk. I think she just could not understand the implication of what were saying. I think she assumed that she had made one mistake and therefore was maybe unfairly being targeted because of that one. But I do not think she understood the gravity of the fact that the baby and a mother's life were at risk and that each time she worked unsupervised she was putting mothers and babies at risk.

It became very evident to me she just did not understand that and it may have been that she shut down out of fear. She used to get very, very tearful every time we discussed it. It took me a long time to work out that actually I don not think you understand what I am trying to say to you and that became evident when we went to the LSA as well, that however much she kept apologising, I do not think she understood what she was apologising for either."^[6]

30. Both Ms Kroll and Ms Jones, having thoroughly investigated EF's agency working and having started their investigation with the view that EF had committed gross professional misconduct in deliberately working unsupervised in the external agency shifts after being expressly forbidden to undertake that work, accepted that EF should be given the benefit of the doubt so far as her explanation that she had mistakenly believed that the agency working she had been forbidden to undertake was confined to agency working within the Trust. In reaching this conclusion, they took all the matters set out in paragraphs 28 and 29 into consideration. Having reached that conclusion, Ms Jones wrote to EF in these terms in a letter dated 29 September 2008:

"This is a serious matter and we have given careful consideration to the circumstances surrounding your breach of the NMC standards for midwifery practice. We concluded that on this occasion, subject to satisfactory completion of your period of supervised practice, no further action would be taken."

In her evidence to the CCC, Ms Jones explained that although Ms Kroll had contemporaneous records of EF being told not to work unsupervised, the investigation felt that they should give EF the benefit of the doubt and allow her to continue her supervised practice.

31. Regrettably, on 25 September 2008, but unknown to Ms Kroll and Ms Jones until after Ms Jones's letter dated 29 September 2008 had been sent off, EF was involved in a further incident of unsupervised working, this time of a different kind and taking place within the trust whilst working a supervised practice shift. The incident is one of those included in the allegations considered by the CCC but is not one that is included within the allegation of dishonesty. In summary, on a day on which the labour ward was particularly busy and short-staffed with midwives, neither of EF's mentors was working. After the day shift had been completed, one of the co-ordinating midwives reported EF to Ms Kroll for having worked unsupervised throughout the shift since there was no official documented evidence of her having been supervised. Ms Kroll accepted EF's explanation that she had been supervised in the morning session by a mentor.
32. EF admitted working unsupervised in the afternoon but pointed to the difficult working conditions, to the mentor assigned to her for that session not seeking her out to supervise her and to the fact that a co-ordinator was on hand to provide her with support if necessary. Ms Jones rejected that mitigation since EF remained accountable for her own practice and should have informed an SOM and/or a manager when she was left without a mentor and have then declined to practise until a mentor had been appointed to supervise her. It is noticeable however that Ms Jones advised the Trust that there had been a system failure by UCLH that had allowed EF to work unsupervised and that that system failure should be addressed by the Trust. This incident again identified that there were considerable weaknesses in the attitude of UCLH midwives to supervised working in 2008.
33. Ms Jones concluded that the allegation against EF that she had worked unsupervised for part of her shift on 25 September 2008 should be upheld. By the time that Ms Kroll had finished her investigation into this incident, EF had been dismissed from her employment for breaches of the Trust's disciplinary code connected with her agency working. Thus, she would have been unable to complete her period of supervised practice at UCLH. Ms Jones concluded that, given the seriousness of EF's breach of the NMC Code on this occasion, it was inappropriate to seek an external placement for EF to enable her to complete her unsupervised practice. Ms Jones therefore suspended EF from practice as a midwife.
34. Ms Jones then reported EF to the NMC in a report dated 10 November 2008. This allegation set out the history of EF's supervised working including her agency working, the LSA investigation into that working and the conclusion that EF should be given the benefit of the doubt on that occasion and allowed to complete her period of supervised practice. The report than set out Ms Jones's allegation about EF which was solely concerned with the incident that had occurred on 25 September 2008.
35. The documents placed before the CCC also contained a report of the disciplinary investigation into EF's agency working that had been carried out by Ms Beatson and other management members under the UCLH Employee disciplinary procedure. That report concluded that EF had worked unsupervised in contravention of the instructions she had been given by her managers and, in doing so, she had brought the Trust into disrepute. The report recommended that there was sufficient evidence to activate the next stage of the disciplinary procedure and for the disciplinary investigation to proceed to a formal disciplinary hearing. That hearing took place on 20 October 2008 but there was no evidence before the CCC as to what occurred at that hearing since the notes taken during it had been mislaid. All that the CCC was informed was that EF was dismissed on 22 October 2008 following that hearing. EF appealed and an appeal panel dismissed her appeal on 9 November 2008. The reasons of the panel and the appeal panel were not provided to the CCC. It is significant, however, that Ms Beatson in her report did not find that EF had acted dishonestly in undertaking the agency work.

2. Relevant Regulatory Framework

36. Nurses include within their number midwives who are nurses who have undergone additional training and have obtained additional qualifications to act in both capacities. The nursing profession is regulated by the NMC which is the body responsible for setting standards of education, training, conduct and performance and for putting in place arrangements to ensure that these standards are met. For that purpose, the NMC, amongst other functions, is required to establish and keep under review the standards of conduct, performance and ethics expected of registrants and to give them guidance and effective arrangements to protect the public from persons whose fitness to practice is impaired^[7]. The NMC has issued four documents relevant to this case: (1) a Code entitled: Standards of conduct, performance and ethics for nurses and midwives; (2) a guidance document entitled: Midwives' rules and standards and advice relating to a nurse's obligations regarding registration with the NMC; (3) A guidance document entitled: Standards for the supervised practice of midwives dated September 2007 and (4) a guidance document entitled: Indicative sanctions guidance for panels of the Conduct and Competence and Health Committees. The NMC maintains a register of those currently qualified and entitled to practice and regulates those in practice with a detailed structure of regulatory investigation and control.
37. The regulatory structure of the NMC is provided for in Parts V and VI of the Order concerned with Fitness to Practise and appeals and in the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 ("the 2004 Order"). The relevant parts of the structure affecting this case may be summarised in this way:

(1) The starting point for an investigation and any consequent disciplinary process for EF, as for any nurse, was the receipt by the NMC of an allegation that EF's fitness to practice had been impaired by reason of misconduct, lack of competence, a conviction or a caution. Such an allegation may be made by anyone with a reasonable interest in making the allegation including, as in this case, her Local Supervising Authority ("LSA"), the London LSA. The NMC could also, of its own volition, have referred EF for an investigation^[8]. The London LSA's allegation that was sent to the NMC against EF was dated 10 November 2008. The allegation related solely to the one instance of non-supernumerary working that had occurred on 25 September 2008 and EF's consequent suspension from midwifery working. It did not, therefore, include an allegation of dishonesty.

(2) The London LSA's allegation, as with all allegations, was referred to a Practice Committee, also called an Investigating Committee, as required by article 22(5) of the 2001 Order. Article 26(2) required the IC to investigate the allegation by taking notifying EF of the allegation and inviting her to submit written representations and then, if it saw fit, to notify the person making the allegation of EF's representations so as to enable the complainant to deal with those representations and also to take such other steps as were reasonably practicable to obtain as much information as possible about the case.

(3) EF was sent a copy of the LSA's allegation and she submitted her comments on it to the Investigating Committee in a statement dated 24 February 2009. A copy of this statement was not included in the documents lodged for this appeal but it is to be inferred that they did not address the allegation of dishonesty which had not then been formulated. The Investigating Committee then obtained detailed witness statements and supporting exhibits from four witnesses running to 205 pages. These statements were dated 20 July 2009 from Olive Jones, 11 November 2009 from Debra Kroll, 20 November 2009 from Susanne Thompson and 1 March 2010 from Debby Gould. This material was served on Mrs Fabiyi (according to the NMC's records) on 7 May 2010 Having considered all this material ON 23 June 2010, the Investigating Committee decided that there was a case to answer and that EF's case should be referred to the CCC^[9].

(4) EF consulted her solicitors who had represented her at the disciplinary hearing in 2008. The solicitors sent a response to the charges including an indication of which charges were admitted and which denied. These were received by the CCC on 26 July 2010. The CCC then decided that a hearing would be desirable and, on 26 July 2010, served on EF a notice of referral. That notice was required to:

"(a) particularise the allegation, and-

where it is alleged that the registrant has committed misconduct or received a criminal conviction, particularise the alleged facts upon which the allegation is based, …"^[10]

EF was not, at that stage, sent a copy of the evidence that the Investigation Committee had accumulated but it appears to have decided as soon as the CCC received the reference that the CCC would consider the allegation at a hearing since it notified EF of the fact that there was to be a hearing when serving the notice of referral on her^[11].

(5) The CCC served on EF a notice on 24 October 2010 that the hearing would take place on 29 and 30 November 2010. That notice was accompanied with a copy of the proposed hearing bundle which contained copies of the witness statements and the extensive number of exhibits that accompanied them. This appears to have been the first occasion on which EF was able to appreciate the nature, extent and gravity of the allegation of dishonesty that she was to meet.

(6) It is relevant to have in mind the requirements of the 2004 Order as to what should have been served on EF with that notice:

"(1) Where a hearing is to be held in accordance with rule 10(2), the [CCC] … shall send a notice of hearing to the registrant.

(2) The notice of hearing shall be sent to the registrant-

(a) …

(b) in every case, no later than 28 days before the date fixed for the hearing.

(3) The notice of hearing^[12] shall-

(a) inform the registrant of the date, time and venue of the hearing;

(b) … contain a charge particularising the allegation, and-

(i) where it is alleged that the registrant has committed misconduct or received a criminal conviction, particularise the alleged facts upon which the allegation is based,

…

(d) inform the registrant of her right to attend, and to be represented at, the haring … ;

(e) inform the registrant of the [CCC]'s power to proceed with the hearing in her absence;

(f) inform the registrant of her right to adduce evidence in accordance with rule 31:

(g) inform the registrant of her right to call witnesses, and to cross examine some witnesses called by the [NMC] or the [CCC];

(h) require the registrant to inform the [CCC] within 14 days of receipt of the notice, whether she intends to-

(i) attend the hearing,

(ii) be represented at the hearing;

be accompanied by a copy of these Rules where they have not previously been sent to the registrant;

…

(k) where the [CCC] is to consider an allegation at an initial hearing, inform the registrant of the action the [CCC] may take under article 29 of the [2001] order^[13]; and

(l) where the [CCC] is to consider an allegation at an initial hearing, invite the registrant to indicate whether any admissions are made in respect of the allegation, and inform her that any admissions will be taken into account by the [CCC]; and …"^[14]

(7) These requirements were not fully complied with. In particular, given the way that the presenting officer presented the allegation of dishonesty to the CCC, the allegation of dishonesty that was charged was not fully particularised and no attempt had been made to summarise or present in a structured and succinct form the facts on which that charge was based. This was particularly significant since EF had not previously been provided with these details and had not previously been shown the extensive evidence and documents on which the allegation of dishonesty was based.

(8) The 2004 Order provided for the registrant's entitlement to be heard by the CCC and to be represented (rule 20), for the CCC to hear and determine the allegation in the absence of the registrant (rule 21), for the calling witnesses (rule 22), for the order of proceedings at a hearing (rule 24), for amendments of the charge (rule 28), that the burden of proof facts rested on the NMC (rule 30), for evidence at the hearing (rule 31), for postponements and adjournments (rule 32) and for the service of documents (rule 34).

38. EF neither appeared nor was represented at the hearing. The reasons for that non-appearance and non-representation emerged during the hearing of this appeal in an unsatisfactory way. Counsel for EF, who had only been instructed on the day before the hearing, opened the appeal by explaining that she had received instructions from EF about her non-appearance and non-representation at the CCC hearing which counsel considered should be placed before me as part of the appeal. These instructions related to the way that EF contended she had been advised and represented prior to the hearing which had led, much to her regret, to her being both absent from, and unrepresented during, that hearing. Ordinarily, when such allegations are being made on an appeal in a criminal or disciplinary matter, the previous representatives are given an opportunity to comment on the allegations about their representation now being made by their former client. This step had not been taken and the complaints were not fully particularised in the notice of appeal. However, I adjourned the appeal for 24 hours to give EF and her present legal representatives an opportunity of obtaining evidence from EF's previous solicitors. Such evidence was obtained and EF put in with my permission a further witness statement.
39. This is a summary of the relevant parts of the original and additional evidence filed on behalf of EF:

(1) EF had been sent a copy of the LSA allegation dated 10 November 2008 which she had responded to in a witness statement dated 24 February 2009. A copy of that witness statement was not made available to the CCC but it understandably only addressed the allegation concerning her working unsupervised on 25 September 2008 since that was the only allegation sent to the NMC by the LSA.

(2) EF had been in contact with her union during the Trust's disciplinary hearings in October and November 2008 but had no further contact with the union until she received a copy of the NMC's allegations in about June 2010. The union put her in touch with solicitors, Thompsons, who they fund in order for that firm to represent nurses who are members of the union who are being investigated or proceeded against by the NMC at a disciplinary hearing. Whatever documents EF had received from the NMC at that stage were not placed before the CCC but they must have included, and may well have only included, a copy of the charge being referred to the CCC. It was not appreciated at that stage that EF was being charged with dishonesty of a particularly serious kind since the only indication of that particular allegation was the one word "dishonestly" that appeared at the end of detailed particulars of her unsupervised agency working which was also charged separately.

(3) Thompson's sent EF a standard client care introductory letter dated 9 July 2010 which informed her that the writer would be dealing with her case and stated that the NMC would be allocating a hearing date and that 42 days before the hearing they should receive the hearing bundle which would include any witness statements the NMC was relying on and which they would forward to her and she would need to provide her written comments about these documents when she received them. The letter included this advice:

"After the response [of EF on the contents of the hearing bundle] have been received and documents exchanged we will review your case. We will advise you if there are any mattes which may affect the likely sanction in your case."

(4) Thompsons contacted the NMC by a letter dated 26 July 2010 and informed it that they were acting on behalf of the registrant^[15] and gave it notice of the charges that EF admitted and denied.

(5) EF received the hearing bundle directly from the NMC on 25 October 2010. She never met the solicitor assigned to her case, Ms Howard and they spoke on the telephone between five and eight times. Her witness statement was settled over the telephone a day or two before the hearing.

(6) EF explained that she had spoken to her union representative some time before the hearing on an informal basis and that representative had told her that she need not attend the hearing, that most people did not attend and that the issues centred on her continuing to practice as a midwife which did not impact on her continuing to practice as a nurse.

(7) EF in one of the later telephone discussions with Ms Howard informed her of this conversation with her union representative and, according to EF, Ms Howard did not seek to persuade her that her attendance was necessary, particularly to deal with the issue of dishonesty, nor was she advised as to the potential outcome or of the consequences of not attending or of the impact of her not giving evidence before the CCC or of the particularly serious nature of the charge and the consequences to her of an adverse finding on that charge.

(8) EF consented to her solicitor speaking to her previous solicitor who acted for her prior to the CCC hearing, to that solicitor communicating to her present solicitor anything covered by client privilege and to the contents of any conversation between the two solicitors being communicated to me during the hearing of the appeal. EF's current solicitor, Ms Olorunnisomo, spoke to Ms Howard on the telephone and recounted what the two solicitors had said to each other in a further witness statement which I permitted to be adduced at the hearing. According to Ms Olorunnisomo, she asked Ms Howard why EF was not represented at the hearing and Ms Howard's response was that the union would not pay for representation at the hearing if the client decided not to attend. In such circumstances, Thompsons would only submit the client's witness statement to the CCC prior to the hearing.

(9) Ms Olorunnisomo stated that she also asked Ms Howard: "was EF told about the implication of not attending the hearing" and her sole response was "EF would have known of the implication of not attending".

(10) EF also stated that she was most concerned to learn that her solicitor had not attended the hearing. She had understood that she would be legally represented at the hearing and only became aware that she was not on seeing the transcript of the hearing for the first time on 18 January 2012. She was also concerned that the reasons for her non-attendance were not put before the CCC. These were that she had been advised by her union representative that her attendance was not necessary and that, since she was very stressed about the hearing, she decided that she would not attend.

(11) The witness statement that was settled over the telephone was drafted by Ms Howard. It was a short document. It made it clear that EF was not disputing any of the charges save for the charge of dishonesty. The only evidence it gave in relation to that disputed charge was contained in this sentence:

"I do not admit that my actions were dishonest."

This statement was settled a day or two before the hearing and was sent to EF to sign and return. It was then submitted to the NMC. No doubt because it was only received back from EF on the morning of the hearing, it was hand-delivered to a receptionist at the NMC by a member of Thompson's staff acting purely as a messenger.

40. The hearing was conducted in conventional fashion before a panel of three members of the NMC, two of whom including the chair were lay members and the third was a registered midwife. The case for the NMC was presented by a case presenter and a legal assessor was present. He advised the panel on points of law during the hearing. The hearing was quite properly conducted in five discrete stages: (1) a consideration and ruling as to whether the hearing would proceed in the absence of the registrant and any representation on her behalf; (2) a fact-finding hearing with the charge of dishonesty; (3) a hearing to determine whether the registrant's fitness to practice was impaired by reason of misconduct; (4) a sanctions hearing and (5) an interim suspension order hearing.
41. The allegation laid before the CCC was as follows:

"1. Whilst on a period of supervised practice at the beginning of June 2008,

(a) You worked in a non-supernumerary role midwife as an agency midwife by Mayday Healthcare Plc. on:

[the seven occasions at Queen Elizabeth Hospital, Wexham Park Hospital and Whittington Hospital between 30 July 2008 and 16 August 2008]

(b) Your actions described above in 1(a) were:

(1) In direct contravention of the instruction of your Supervisor of Midwives, Debra Kroll;

(2) In direct contravention of the instructions of Midwife Rena Melnyczuk:

(3) Dishonest.

2. On 25^th September 2008, whilst on a period of supervised practice beginning in June 2008;

(a) You failed to ensure you were supervised at all times when you were providing midwifery care within the University College London Hospital."

3. Preliminary Discussion

(1) The widening of the allegations during the investigation stage

42. One of the unusual features of this case is the way in which the allegations against EF were widened during the investigation. It can be seen from my summary of the factual background that EF was initially given the benefit of the doubt in relation to the first allegation involving seven separate incidents of external agency working. The two LSA SOMs who investigated those allegations accepted EF's mitigation or excuse that she genuinely albeit mistakenly believed that Ms Kroll's and Ms Melnyczuk's instructions relating to supervised practice and supervised working in a supernumerary role were confined to working within the UCLH group of hospitals. As a result, they allowed her to continue to practice in a supervised practice role and when Ms Kroll subsequently made an allegation about EF to the NMC, that allegation did not cover or involve the seven separate incidents of external agency working at all and therefore there was no suggestion of dishonest conduct that was being referred.
43. Thus, when EF was first sent a copy of the allegations being made against her for comment, she was sent a copy of Ms Kroll's allegation and she responded in her statement dated 24 February 2009 to the one allegation that Ms Kroll's had set out in her allegation document that related to the 25 September 2008 incident. It would seem that the NMC first decided to formulate allegations against EF relating to the seven incidents of unsupervised working in July and August 2008 in 2010 just before sending the charge to EF in July 2010 following its receipt of Ms Jones's and Ms Kroll's witness statements and enclosures in July 2009 and November 2009 respectively. It does not appear that the NMC sent EF copies of those witness statements or the other two witness statements it had received for comment before serving the charge upon her nor did it inform her that she was being considered for an allegation of dishonesty to enable her to comment about that. Furthermore, when she was served with the charge containing the allegation of dishonesty, she was not served with copies of the documents and neither the allegation of dishonesty nor the facts upon which it was based were particularised. It is not surprising, therefore, that EF was not conscious at that stage, in July 2010, of the seriousness of the allegation that she had to meet.
44. EF was served with the hearing bundle in late October and, again the dishonesty allegation and the facts upon which it was based were not particularised. It would not have been clear to her what relevance most of the documents and witness statements that she received had and it is not surprising that she appeared to remain in ignorance of the serious nature of the dishonesty charge. Moreover, her witness statement, when it was hastily drafted over the telephone just before the hearing, merely stated that she did not admit that her actions were dishonest and did not put forward any explanation of the kind that she had put forward to Ms Kroll and Ms Jones in 2008 which had led them to the conclusion that EF should not be given the benefit of the doubt and proceeded against on any basis in relation to the unsupervised agency working which subsequently formed the basis of the allegation of dishonesty.

(2) Dishonesty

45. The NMC were, of course, entitled to formulate an allegation of dishonesty if it considered that the evidence before them provided a prima facie case of dishonesty. However, it was necessary at the charging stage and it remained necessary throughout the hearing and decision-making stages for the CCC to keep in mind the nature of the dishonesty with which EF had been charged and the evidence that EF had been notified as the evidence that the NMC was relying on to support that charge. This was because dishonesty is a state of mind and a person's actions can only be considered to be dishonest if that person was consciously seeking to mislead or take advantage of another person.
46. It is worth keeping in mind a crucial passage of the judgment of Lord Lane LCJ in R v Ghosh^[16], the case that gave rise to the now familiar Ghosh direction as to dishonesty that was given to the CCC panel by the legal assessor in this case. In that case, a surgeon was charged with four counts, one of attempting to procure the execution of a valuable security by deception, one of attempting to obtain property by deception and two of obtaining property by deception. The surgeon had falsely claimed that he had carried out surgical procedures and that money was therefore due to him. It was subsequently discovered that the procedures had been carried out by someone else or had been undertaken under the NHS so that no money was due to him. His defence was that there was no deception since the monies were due to him for consultation fees which he was legitimately entitled to or were the balance of fees properly payable.
47. Turning to Lord Lane's introduction to the question of how the jury should have been directed in relation to the allegations of dishonesty, the Lord Chief Justice said this:

"Is "dishonesty" in section 1 of the theft Act 1968e intended to characterise a course of conduct? Or is it intended to describe a state of mind? If the former, then we can well understand that it could be established independently of the knowledge or belief of the accused. But if, as we think it is the latter, then the knowledge and belief of the accused are at the root of the problem."

48. Thus, in alleging that EF undertook seven external agency shifts dishonestly, the NMC was alleging that she undertook them with a state of mind which she knew was dishonest. In those circumstances and given the procedural rules relating to the particularisation of both the allegation and the facts on which it was based, the NMC were required to provide details with the charge of three matters in alleging that EF had acted dishonesty:

(1) The nature of the dishonesty alleged and, in particular, the actions which it was alleged EF had undertaken dishonestly,

(2) The state of mind which it was alleged that she had had when performing those actions which it was alleged amounted to dishonesty; and

(3) The evidence that the NMC was relying on to show that EF had had the alleged state of mind in performing the alleged actions.

49. The allegation as particularised adequately identifies the actions as being EF's working external agency shifts on seven occasions in a non-supernumerary capacity whilst on supervised practice. However, there is no full particularisation of the state of mind that EF was alleged to have had when performing those actions. It is to be inferred from the use of the words "direct contravention" in the charge that what was alleged was that EF, knowing that she had been forbidden to work external agency shifts, took a deliberate and conscious decision that she would ignore those explicit instructions and work them anyway. The only particularisation of the facts relied on in support of that allegation was that the shift working was undertaken in direct contravention of Ms Kroll and Ms Melnyczuk's instructions. Thus, the NMC is to be taken to be confining itself to what was said in the two meetings that Ms Kroll had with EF on 3 and 8 June 2008, in her email of the 18 June 2008 and in the discussion she remembered she had had soon afterward and in Ms Melnyczuk's email of 1 June 2008. However, these instances of EF receiving, or possibly receiving, instructions about unsupervised working were not particularised and they only emerge from a close and informed reading of the hearing bundle.
50. Moreover, the charge does not identify the nature of the dishonesty that is alleged and it is only possible to infer what that alleged dishonesty was by the same close and informed reading of the hearing bundle. Since no particulars were given, the only fair interpretation of the charge was that the dishonesty allegation was confined to the mere fact that EF worked the agency shifts having taken a conscious decision to flout her instructions that these could not be worked. However, the CCC decided that the dishonesty charge related or extended to EF deliberately misleading the hospitals she worked at by falsely representing to them that she was able to work there in an unsupervised capacity. The CCC seem also to have had in mind that EF acted dishonesty in obtaining additional payment for working shifts she was not entitled to work and in relation to her record keeping and patient care whilst working unsupervised. The CCC were, or certainly may have been, influenced in reaching their finding that EF had been dishonest by the conclusion that they had previously reached that EF had taken a deliberate decision to ignore the hearing so as to avoid being confronted directly with an allegation of dishonesty which she had only referred to in her witness statements with a bald non-admission.

4. This appeal

51. EF's notice of appeal was settled by counsel who was not counsel who argued EF's appeal. The appeal was brought under article 38 of the 2001 Order and was subject to the provisions of CPR 52.11. Therefore, the appeal was limited to a review of the decision of the CCC and the appeal could only be allowed on one of two grounds, that the decision of the CCC was wrong or because of a serious procedural irregularity in the proceedings in the CCC. Furthermore, unless ordered otherwise, the High Court in hearing this appeal could not receive evidence that was not before the lower court.
52. The grounds of appeal, as originally pleaded, were dated 25 December 2010 and were lodged in the Administrative Court on 30 December 2010. The decision of the CCC was dated 3 December 2010 and it was lodged within time on 30 December 2010.
53. The original grounds of appeal taken with the additional ground of appeal that I permitted to be argued at the hearing raise four specific grounds which may be summarised as follows:

(1) The CCC should have directed an adjournment of the hearing at the outset of the hearing;

(2) The CCC hearing was procedurally unfair in that the CCC reached its conclusion in reliance on evidence that had not been properly particularised and without considering EF's defence;

(3) The CCC's finding of dishonesty was based on an erroneous application of the law of dishonesty and was wrong; and

(4) The findings of unfitness to practice and the sanction of striking off as both a midwife and a nurse were wholly disproportionate.

5. Ground 1: No adjournment

54. There are four inter-related aspects of this ground. These are that the CCC wrongly concluded that EF had taken an informed decision not to appear; that her lack of representation at the hearing arose from her solicitor's failures and without her consent; that the CCC failed to take into account various relevant matters which pointed to an adjournment and that the decision was based on an obviously erroneous finding of fact. It is also alleged that the decision not to adjourn was obviously wrong.
55. Lack of representation and non-attendance. At the opening of the hearing, the case presenter informed the CCC in answer to the chairman's question as to whether there had been any correspondence from EF indicating whether she intended to be present at the hearing by stating that the NMC had been contacted by Thompsons in July 2010 to inform it that they were acting on EF's behalf. That morning, a Ms Howie from that firm had attended the offices of the NMC with copies of a witness statement on behalf of EF saying that she would not be attending today and asking that the witness statement, which was signed but not dated, should be placed before the CCC. The legal assessor then advised the CCC that there had been attendance that morning by a solicitor representing EF.
56. It was factually correct that someone from Thompsons, who was acting as a messenger and was not shown to have been a solicitor, delivered EF's witness statement to the reception desk of the NMC when the offices opened and asked that that document should be placed before the CCC. That person was asked whether EF was attending and answered that she was not. However, that person was not representing EF since the firm had already decided not to represent her at the hearing. Ms Howie was acting as a messenger and her attendance at the hearing venue was for the sole purpose of delivering to the NMC the witness statement since it had been finalised so late it was not possible to post it so that it would arrive in time. Ms Howie's statement to the receptionist that EF was not attending the hearing was not made as her representative but was merely a polite answer to a direct question given without instructions. It was therefore incorrect for the legal assessor to advise the CCC that there had been attendance at the hearing by a solicitor representing FE who, in that capacity, had stated, significantly without giving reasons for EF's non-attendance, that EF would not be attending the hearing. The correct position was that the CCC had not been provided with any information by either FE or her solicitor as to whether she or they would be attending and no conclusion was justified as to why there was no attendance from either of these people or as to their reasons for non-attendance or as to FE's state of mind about the allegation of dishonesty.
57. The legal assessor then advised the CCC as to the matters that it should consider when deciding whether or not to exercise its discretion to proceed in the absence of both FE and any representative on her behalf. He correctly reminded the CCC that FE had a right to be present and to test the NMC's case and to participate effectively in the proceedings and that such rights could be waived if, knowing or having the means of knowing as to when and where the proceedings against her were taking place, she deliberately and voluntarily absented herself. The legal assessor then, again correctly, advised the CCC that it should address the question of why FE was not present. The legal assessor did not add to his legal direction that the CCC should also satisfy itself that FE's decisions not to be represented and not to appear herself had been taken on the basis of her informed consent to each decision
58. The legal assessor then inaccurately outlined the matters that the CCC should take into account in reaching its answer to what he characterised as the two relevant questions to be considered: whether FE had voluntarily absented herself without representation and did she wish to contest the hearing. These inaccuracies were:

(1) He did not point out that EF's witness statement that had just been delivered clearly stated that she did not admit that she had been dishonest and that that was the only contested issue of fact left for determination since the witness statement also admitted all the other allegations, namely that she had worked unsupervised on 8 separate occasions. All that he said was that the CCC should have regard to whether EF had stated an intention to contest the allegations at a time when the CCC had not yet had the opportunity to read EF's recently delivered witness statement.

(2) He stated that FE had not put forward any reasons for her non-attendance but then invited the CCC to infer that her legal representative was effectively taking the position that that legal representative and FE wanted the hearing to continue and to consider the documentation that had been put forward. That inference was stated to arise from the fact that FE's legal representative "is not making an application for an adjournment on behalf of FE". In fact, the person he referred to as FE's legal representative was not that at all, she had merely acted as a courier to deliver the witness statement. Neither that person nor Thompsons as a firm had taken or were taking any position about whether FE wanted or did not want the hearing to proceed in her absence.

(3) Nothing had been said or done by Thompsons or FE to give rise to the inference that FE wanted the hearing to proceed in her absence and there was no evidence before the CCC to enable it to conclude that her non-appearance and non-representation had been taken following her informed consent to both situations. Such evidence as there clearly pointed to there having been a lack of informed consent. Her recently delivered witness statement addressed the very serious allegation of dishonesty in one sentence: "I do not admit that my actions were dishonest" notwithstanding the long history of her insisting that she had acted honestly albeit misguidedly throughout, a case that had been accepted by both the principle witnesses that were being called by the NMC, Ms Kroll and Ms Jones. Moreover, there was a surprising absence of any representation from Thompsons at the hearing itself, if only to explain to the CCC that FE had instructed them not to appear and of any explanation from either the firm or FE of their respective non-appearances notwithstanding the gravity of the allegation she was to meet and her robust defence to any suggestion of culpability in the past in relation to the allegation of dishonesty that she was contesting.

59. Solicitors' alleged shortcomings. I must treat FE's somewhat belated criticism of the representation and advice that she contends she was provided with before the CCC hearing given the lateness with which she brought forward this criticism and the lack of a fair opportunity for the firm to answer the criticism and provide its own explanation of what had occurred. That said, the solicitor or solicitor's representative who had advised FE was spoken to and was able to provide details of what had occurred by reference to FE's file which she consulted during the telephone call from FE's current solicitor. The file showed that there had been no face to face meetings and that the witness statement had been drafted over the telephone at the last minute. Furthermore, there had been no advice, following a careful consideration of the hearing bundle, of FE's position and as to how she should approach the hearing despite those forming part of the service that the firm had agreed to provide. There is also no evidence that FE was informed that the solicitor would not attend if FE did not attend nor that the solicitor appreciated the seriousness of the allegation of dishonesty, the procedural unfairness of the inadequately pleaded allegation of dishonesty, the lateness in the history of the case that this allegation was first made or the strength of FE's defence that there had been no dishonesty in relation to the allegation as drafted and put forward. Thus, there is no evidence that FE gave informed consent to both her and her solicitor's non-attendance.
60. Relevant matters not placed before the CCC. The CCC, in the context of this case, should have taken into account, but were not advised to take into account and did not take into account, a number of highly relevant matters which pointed towards an adjournment decision so as to provide FE with a further opportunity to attend and be represented. These matters were:

(1) The allegation of dishonesty was inadequately particularised and the evidence relied on had not been summarised and was not set out in the hearing bundle in a readily intelligible order. As a result, without that being done, there was a serious danger of procedural unfairness, particularly in the absence of both EF and her legal representative.

(2) EF appeared to have an arguable defence which the two principle witnesses had previously accepted. Since that defence involved a consideration of her state of mind at the time she worked unsupervised, it would be very difficult for the CCC to address that defence fairly in her absence and without hearing her give evidence.

(3) The CCC could not fairly reach any conclusion as to why FE was not present or as to whether that non-appearance and her non-representation had arisen on the basis of her informed consent. Indeed, the evidence available to the CCC, if anything, pointed to her not appreciating the seriousness of the allegation she had to face. If that was the case, that lack of appreciation it was not entirely her fault given the relative lateness of the allegation first being made, the lack of particularity and the unstructured way that the extensive documentary evidence being relied on was being presented.

61. The CCC's decision. The CCC retired for 8 minutes to consider whether it wished to proceed. On its return, the chairman announced that the hearing would proceed and gave the following reasons to explain that decision:

(1) FE was aware of the hearing. That particular statement was correct.

(2) FE had the benefit of legal representation. Her solicitor attended this morning and asked for a statement to be admitted in evidence. That was incorrect. FE did not have the benefit of legal representation and there was no evidence as to whether the person who attended to deliver the witness statement was a solicitor, a clerk or a secretary. Moreover, if the person who was said to be representing FE that day was indeed representing her, that person should have attended the hearing and addressed the CCC as to why FE was not attending, why she was not to be represented and as to whether an adjournment was being requested or not.

(3) The CCC was satisfied that FE had deliberately and voluntarily absented herself from the hearing. If the matter was to be adjourned, she would not attend in the future. There was no evidence or basis that could fairly support either of these findings.

62. It follows that the decision to proceed in FE's absence was procedurally unfair and she was greatly prejudiced by the hearing proceeding without either herself or her legal representative being present.

6. Ground 2: Procedural unfairness

63. Widening the particulars of dishonesty. In opening the case, the case presenter stated that, in the light of FE's admissions, the remaining factual issue for the CCC to decide before addressing her competence and any possible sanction was whether or not FE was dishonest. The case presenter did not explain to the CCC what the NMC contended that FE's dishonest state of mind had been and he did not confine the evidence he relied on to the four or five different instructions about agency working that had been given by Ms Kroll and Ms Melnyczuk. Instead, he also appeared to be relying on her working unsupervised on 25 September 2008, FE's use of her ITP form and her failure to inform the Mayday agency that she was on supervised practice and that she had informed the MSI agency but only after her unsupervised working had been brought to the attention of the Trust.
64. During the hearing of the oral evidence, which was given by Ms Kroll and Ms Jones, there was little exploration with them of why they had given FE the benefit of the doubt in September 2008 and whether they had changed their minds about FE's behaviour and state of mind in the intervening period and, if so, why they had. In neither their written nor their oral evidence did they express any view to the effect that their decision in September 2008 was erroneous or that FE should not have been given the benefit of the doubt.
65. FE's defence. During the hearing, Ms Kroll, who was an experienced midwife and SOM and who knew EF well having supervised her in the six-year period she had worked at UCHL, reiterated her view at some length that EF had not understood the gravity of her conduct that had led to the decision to place her on a regime of supervised working or the nature and significance of supervised practice and she had been frightened and tearful during her several meetings with Ms Kroll^[17]. The potential significance of these observations on her state of mind was not explored with Ms Kroll despite them being good evidence that EF had formed the mistaken view and belief and had had the mistaken understanding that agency practice, which she was clearly being banned from undertaking, only referred to unsupervised working within UCLH and the Trust and did not preclude her from external agency working.

7. Finding of dishonesty

66. I will first set out the relevant parts of the CCC's decision that FE was acting dishonestly when undertaking the seven external agency shifts. The decision was as follows:

"On the evidence that we have heard and read, we are satisfied on the balance of probabilities that there was no realistic room for misunderstanding of the terms of the Registrant's period of supervised practice.

The Registrant was told repeatedly by Ms Menyczuk and Ms Kroll that she was not allowed to do any bank or agency work during her 450-hour period of supervised practice and she had to work alongside another midwife at all times.

We reject the Registrant's explanation that she misunderstood the instruction not to undertake agency work as applying only to work within University College London Hospital NHS Trust.

There would have been no sensible reason for the prohibition to be limited in this way and in any case the terms of the instructions given to the Registrant were clear and unequivocal.

We are satisfied on the balance of probabilities that the Registrant knew very well that in undertaking supervised agency shifts she was in breach of the terms of her supervised practice. Having made that decision, we considered whether the Registrant's actions were dishonest applying the two-stage Ghosh test for dishonesty.

In working unsupervised agency shifts, the Registrant was representing that she was entitled to work as a midwife without any restrictions on her practice. This was not the case. She was not in fact entitled to work unsupervised and had been specifically prohibited from undertaking any agency shifts at all.

We are satisfied that the Registrant's actions in misrepresenting the position in this way in order to obtain shifts which she was not entitled to undertake would be regarded as dishonest by the ordinary standards of reasonable and honest people. Having rejected the Registrant's explanation we are also satisfied that the Registrant must have been aware that her actions would be regarded as dishonest by those standards. For these reasons we found the facts in this allegation proved."^[18]

67. Errors in the reasoning – Ghosh test. The CCC was correctly given a Ghosh direction by their legal assessor before they retired to consider their decision. The Ghosh direction that the legal assessor gave them was, however, deficient in a one major and one minor respect. The major deficiency was that the direction did not fully follow the standard Ghosh direction now given to juries that is set out in the Crown Court Bench Book used by judges as a guide to the legal directions to be given to juries in criminal trials. The direction given by the legal assessor was satisfactory so far as it went but it omitted a vital opening passage of the standard direction and any direction as to the dishonesty alleged and the relevant and admissible evidence that should be considered in relation to that direction. To illustrate that deficiency, I set out the legal assessor's direction with the missing opening section taken from the Crown Court Bench Book set out in bold. The minor deficiency is also illustrated, in that case by the passage in italics. The interpolated direction reads as follows:

"If you are sure [the criminal standard, in the NMC, the legal assessor's direction would be "if you are satisfied on a balance of probabilities"] that the [Registrant] acted as the [NMC] alleges, the final issue is whether the [Registrant] was acting dishonestly. In order to resolve that issue you need to consider two questions:

First, are you satisfied to the balance of probabilities that the Registrant's actions would be regarded as dishonest according to ordinary standards of reasonable and honest people? If so, and only if so, are you satisfied on the balance of probabilities that the Registrant herself must have realised that her actions would be regarded as dishonest by those standards.

It is only if the answers to both those questions is "yes" that you must find that the allegation of dishonesty is made out by the NMC in this case. If the answer to [each of those questions is "No"] [the answer to the first question is "yes" and the second question is "no" or the answer to the first question is "no"], well the NMC haven't proved their case on the balance of probabilities.

68. The major error was to omit the opening passage and not to provide with it a direction as to the nature of the dishonesty that was alleged and as to the relevant oral and documentary evidence that could be considered reaching a decision about dishonesty. Had the CCC been directed in this way, it would have been clear to them that they needed to take a structured decision in three sequential stages:

(1) How is it alleged that FE acted and did she act in that way?

(2) If FE had acted in the manner alleged, were those actions dishonest in accordance with the standards of ordinary and decent people; and

(3) If so, did FE realise that her actions would be regarded as dishonest by those standards?

68. The first question had to be asked and answered because the charge had not spelt out clearly the conduct alleged to be dishonest. Moreover, the CCC was not directed that it first had to determine whether FE had acted in the manner alleged. The NMC, in the allegation it had served on FE, was only alleging that FE had undertaken the external agency shifts knowing that she was forbidden to undertake them. It was not also being alleged that she had misrepresented her practicing status as being that of a non-supernumerary to her agency or to any of the three hospitals covered by the allegation.
69. The CCC needed to be instructed that their consideration of FE's conduct had to be confined to whether or not the instructions she had been given on the limited number of occasions on which she was instructed not to work unsupervised clearly precluded her from external agency working and whether she deliberately and consciously ignored those instructions when undertaking that working regime. They were not entitled to take account of other possible dishonest acts such as whether she had misrepresented her status to the hospitals she worked in or deliberately used her ITP form knowing that it was misleading or her misreading CTG readings. Having decided, if they did, that FE had taken on the unsupervised work knowing that she had been forbidden to work in that way, the CCC then had to decide whether that deliberate ignoring of her instructions was objectively dishonest in addition to being deliberately disobedient. Finally, they had to address the question of whether FE knew that her deliberate flouting of her instructions would be regarded as being dishonest.
70. The minor error in the direction was that it did not identify what the result would be if the CCC answered the first question yes and the second question no. Taken on its own, that misdirection would not have fatally undermined the CCC's decision.
71. The legal assessors directions were also gravely deficient in not reminding the CCC that they had carefully consider EF's defence, in not explaining what that defence was in the context of this case and, in particular in not explaining how it was possible to admit the charges of wrongful unsupervised working but, in doing so, not to be dishonest. Given the absence of both EF and any representative, the legal assessor should also have summarised for the CCC the parts of the oral and documentary evidence that EF or her representative could have relied on had either been present at the hearing.
72. The direction that the legal assessor should have given was, therefore, one of some difficulty and it would have required detailed preparation and would have taken significantly longer to deliver than was, no doubt, ordinarily the case. However, FE was charged with a serious criminal charge, albeit in a civil context, she was neither present nor represented, the charge was inadequately particularised, the evidence was detailed and had been presented in an unstructured manner and FE had a defence that had "a good run" but which could only be fairly considered if the evidence was examined with some care. The legal assessor needed to ensure that FE's case was fairly and fully considered by the CCC in the face of all those unusual features and that could only have been done with a careful and detailed series of directions on the law, the procedural requirements relating to the charge and the evidence.
73. The errors in the decision-making process. The most obvious errors in the decision-making process and the consequent decision were these:

(1) The decision was, essentially, that EF must have understood the clear prohibition on unsupervised working anywhere since that prohibition had been clearly and repeatedly communicated to her. In those circumstances, she dishonestly represented to the relevant third parties that she was still eligible to undertake unsupervised working and she must have known that that working was dishonest in accordance with the objective standards of reasonable people. That decision was heavily reliant on conduct, namely the false representations that the CCC found had been made, which EF had not been charged with. Moreover, it did not analyse or consider the details of EF's defence and it gave no reasons for the rejection of that defence save that the "repeated" instructions that she had received were clear and unequivocal. The use of the word "repeated" appeared to be pointing to more occasions than the limited number of relevant occasions that EF had been given instructions, all of which were in the very early days of her supervised practice.

(2) The decision was not made by taking each of the three stages required by the Ghosh test separately and in sequence. Thus, the decision did not first identify the dishonest behaviour that the CCC found had occurred, then identify whether and why that behaviour was dishonest to ordinary, right-thinking people and then identify whether and why EF realised or did not realise that her conduct was dishonest in accordance with those standards. In consequence, the CCC based its decision on what it found to have been EF's dishonesty in falsely representing to her agency and to the three hospitals concerned that she was able to accept one-off non-supervised agency working shifts. Since that was not the dishonesty that EF had been charged with, the CCC were not entitled to consider it without an amendment having first been made to the charge before it. That would have inevitably required the hearing to be adjourned to enable EF to address that amendment and reconsider her decision not to appear or be represented at the hearing.

(3) The CCC did not appear to understand that the third stage of the decision-making process was essentially concerned with EF's defence that she had misunderstood her instructions as to what was meant by agency working.

(4) None of the extensive evidence available to the CCC relating to EF's defence was considered by the CCC, or appeared to have been considered by the CCC given the omission of any summary of what that evidence was and why it had been rejected. This evidence included the evidence as to EF's state of mind and her obvious contemporaneous lack of comprehension of the instructions she had received, as to the general misunderstanding amongst UCHL midwives about the nature and purpose of the very new and previously unknown supervised practice regime and as to the very significant fact that those including Ms Kroll and Ms Jones with a good knowledge of what had occurred and had been said to EF when she was instructed had given her the benefit of the doubt, had not considered her to have acted dishonestly and had permitted her to continue working on supervised practice without any allegation about her conduct associated with the agency working being dishonest being made to the NMC.

74. The decision was, therefore, erroneous in law in not being taken in accordance with the Ghosh principles, in being taken in reliance on matters that the CCC were not entitled to rely on and without any apparent appreciation or consideration of EF's defence.

8. Issue 4: Findings of unfitness and striking off disproportionate

75. General approach. As a general rule, the High Court will be slow to interfere with a finding of unfitness to practice or a sanction of removal from the register. This is because these findings are of a disciplinary nature and are entirely matters of discretion taken by a specialist panel that have a good collective working knowledge of the midwifery and nursing profession and the relevant public interests that they must take account of. It is clear from the CCC's reasons that they found that EF was guilty of misconduct and unfit to practice and that she should be struck off both the midwifery and nursing registers largely because of their finding of dishonesty. Indeed, since they did not have to consider EF's case, and did not consider her case, solely on the basis of her admissions and having excluded any consideration of any dishonest conduct and since their findings are now being set aside since their crucial foundation of those findings of dishonesty, is being set aside, it would be wrong and unnecessary for me to express any views as to the appropriateness of their findings on misconduct, unfitness and sanction or whether, had the dishonesty finding stood, these consequential findings were susceptible to challenge on this appeal.

9. Conclusion and Order

76. Conclusion. For all the reasons set out in this judgment, I find that the decision was unjust because of serious procedural irregularities and was taken on a wrong legal basis. I must therefore allow the appeal and quash the decision appealed against. The case must be remitted to the CCC to enable it to consider whether or not EF is unfit to practice on account of her misconduct and, if she is, what sanction to impose. I direct that that remission should be considered on the basis that there was no dishonesty and so I am not remitting the allegation of dishonesty for reconsideration. The CCC will, of course, when reconsidering any sanction take account of the fact that EF has now been suspended from practice as a midwife since 6 November 2008 and subject to an interim suspension order from practice as both a midwife and a nurse since 3 December 2010.
77. I direct that the interim suspension order shall continue for a further period of 6 months or until the remitted decision of the CCC if that occurs within that extended period.
78. Order. I therefore order:

1. The Registrant's appeal is allowed.

2. The decision of the Conduct and Competence Committee of the Nursing Midwifery Council dated 3 December 2010, including the decision that the Registrant may not apply for restoration until 4 December 2015, is quashed.

3. The case, save as to the allegation of dishonesty, is remitted to the Conduct and Competence Committee of the Nursing and Midwifery Council for it to consider and determine the remaining allegations in the light of the admissions made by the Registrant and of the contents of this judgment.

4. The interim suspension order dated 3 December 2010 is extended for a period of 6 months from 3 June 2010 or until the redetermination of this case by the Conduct and Competence Committee, whichever is the sooner.

5. The Nursing and Midwifery Council is to pay the Registrant's costs of the appeal to the High Court, such costs to be the subject of detailed assessment by the costs judge if not agreed.

HH Judge Anthony Thornton QC

Note 1    See paragraph 19 below.    [Back]

Note 2    Transcript, Day 1, 24B.    [Back]

Note 3    See paragraph 19 below for an example of this in relation to EF’s external agency shift working.    [Back]

Note 4    Ms Olive Jones, LSAMO of the London LSA, Ms Suzie Cro, LSAMO of the South Central LSA and Ms Kroll, the SOM from UCLH.    [Back]

Note 5    Interview notes taken by a note taker present during the interview undertaken by the three members of the Investigation, 17 September 2008.    [Back]

Note 6    Transcript, Day 1, 24C – E.    [Back]

Note 7    Article 21 of the 2001 Order.    [Back]

Note 8    Articles 22(1) and (6) of the 2001 Order. In other appropriate cases, an impairment allegation may also be made about the registrant’s physical or mental health, a relevant determination by another relevant regulatory body of impairment or the fraudulent procurement of an entry in the registry.    [Back]

Note 9    Articles 26(5) and (6) of the 2001 Order and rule 6 of the 2004 Order.    [Back]

Note 10    Rule 9(2) of the 2004 Order.     [Back]

Note 11    Rule 10(1) of the 2004 Order requires the CCC to decide whether to hold a hearing as provided for in rule 10(2).     [Back]

Note 12    This hearing was an “initial hearing” as defined by rule 24. An initial hearing of the allegations was one that considered the preliminary, factual, impairment and sanction stages of that hearing. This was the hearing directed to be heard on 29 and 30 November 2010.     [Back]

Note 13    i.e. the sanctions available to the CCC including striking-off, suspension, conditions of practice order or a caution.     [Back]

Note 14    Rule 11 of the 2004 Order. Since the notice of hearing was not included in the documents lodged for this appeal, it is not known whether these requirements were complied with. However, the charge was clearly served with the notice of referral and/or the notice of hearing since the wording of the charge is set out in EF’s statement served on the NMC on the morning of the first day of the hearing.     [Back]

Note 15    Transcript, Day 1, 2F, information provided to the CCC by the Case Presenter.    [Back]

Note 16    [1982] 1 QB 1053, CA.    [Back]

Note 17    See paragraph 29 above for a crucial passage of this part of her oral evidence.    [Back]

Note 18    Transcript, Day 1, 55F – 56C.    [Back]