England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester Greater Manchester M60 9DJ
		21st January 2014

1. HIS HONOUR JUDGE GORE: This is a statutory appeal, brought by the appellant against the decision of the respondent's Conduct and Competence Committee, to find her fitness to practise was impaired and to impose the sanction of striking off from the register. The appeal is brought under Article 38 of the Nursing and Midwifery Order 2001.
2. The appellant nurse qualified in 2009. At the time relevant to this appeal she had an unblemished clinical and conduct record. On 26th May 2010 sadly her father passed away unexpectedly in Zimbabwe. Since that time, and in particular throughout 2011, the appellant's mental health deteriorated and fluctuated, as described in the psychiatric report of Dr Ghosh, dated 1st August 2012, the contents of which have never been disputed in this case and have always been taken into account.
3. On 6th February 2011 the appellant began employment as a full-time Band 5 nurse on ward 12 of Singleton Hospital. Her first 6 months there were not entirely harmonious, which is the way in which it is described in Mr Dickason's skeleton argument, he appearing for the appellant today, and that, he says can be seen from the file note dated 7th November 2011.
4. On 6th August 2011 in fact her mental health had deteriorated to such a degree that sadly she attempted suicide by an overdose of quinine sulphate tablets which she had purchased online. From 7th August 2011 to 29th September 2011, in those circumstances, hardly surprisingly, the appellant took sickness absence from work. On 7th November 2011 she had a performance management meeting with her line manager, in the course of which she became distressed and upset. Following that meeting the case is that she stole Tramadol tablets from the ward. She ingested what is asserted to have been an unknown quantity and was sick some time later.
5. On 18th November 2011 ward managers identified that quantities of medication were missing from the supply. Police were called and attended on 22nd November 2011 and the nursing staff, including the appellant, voluntarily submitted to a search. Three packs containing 28 Tramadol tablets were found in the appellant's pocket. The appellant was arrested and taken to Swansea central police station. At 2.34 in the morning on 23rd November 2011 she was interviewed in the presence of the duty solicitor. She admitted the theft of Amitriptyline and Tramadol tablets from the ward but could not confirm the quantities or the dates. She denied the theft of the Tramadol found in her pocket the preceding day, on the basis that it had been intended to be given to patients in the course of the same shift.
6. The appellant accepted a caution in respect of the unspecified quantities of Amitriptyline and Tramadol that she admitted she had taken previously, that caution being for conduct contrary to sections 1(1) and (7) of the Theft Act 1968. The appellant, I should emphasise, was not cautioned in respect of the Tramadol found in her pocket on the 22nd November 2011. It is right to say, as was submitted by Mr Dickason, on behalf of the appellant, that the reference to "these drugs" on 22nd November 2011, at page 3 in the second full paragraph of the Decision Letter of the Council is therefore erroneous but there is no dispute that that error did not appear to form any part of the decision making of the Committee in this case.
7. At all events, as a result of these events the appellant received a final written warning and she was transferred from ward 12 to the Tempest Burns Intensive Therapy Unit.
8. Her conduct was referred to the Nursing and Midwifery Council on 28th November 2011. On 5th January 2012 an 18 month interim conditions order was imposed. This was subsequently reviewed and extended by the High Court on application dated 24th June 2013. The single charge at all times was in the following terms that the appellant:

"...whilst a registered nurse employed by Bro Morgannwg University Health Board NHS Wales at Singleton Hospital:

1. Received a caution from South Wales Police on 23 November 2011 for theft by employee.

AND in light of the above your fitness to practise is impaired by reason of your caution."

9. The allegation was admitted and the appellant gave evidence at the impairment and sanction stages of the Committee's deliberations. She was in fact the only live witness. The hearing took place over two days, on 9th August 2013 and 5th September 2013. The decisions appealed against were notified to her by letter dated 10th September 2013, and this appeal is made under Article 38 of the Nursing and Midwifery Order 2001.
10. There are two grounds of appeal. First, in so far as the finding of fact was made that the appellant's fitness to practise was impaired by reason of the caution she had received, the Panel found, and the appellant appeals against the finding, that she took stolen Tramadol on multiple occasions and that her protest that she did so on only one occasion was therefore dishonest. Mr Dickason, who appears for the appellant, submits that the Committee rejected the appellant's explanation without satisfactorily engaging with it, despite the seriousness of the findings as to the appellant's truthfulness which it made as a result and without condescending to give adequate reasons or analysis for the decision that it came to.
11. The second ground of appeal relates to the advice to the Committee at the sanction stage of the process. It is submitted that the legal advice erred when commending the application of the decision in Solicitors Regulatory Authority v Sharma [2010] EWHC 2022, which gave the Committee the erroneous impression that striking off would be appropriate in all cases of dishonesty absent exceptional circumstances, which it is submitted was an erroneous direction for the legal adviser to have given to the decision-making Committee.
12. Article 38 of the order so far as is relevant provides:

"38.(1) An appeal from-

(a) any order or decision of the Health Committee or the Conduct and Competence Committee other than an interim order made under article 31, shall lie to the appropriate court.

(3) The court may.

(a) dismiss the appeal;

(b) allow the appeal and quash the decision appealed against;

(c) substitute for the decision appealed against any other decision the Practice Committee concerned or the Council, as the case may be, could have made; or

(d) remit the case to the Practice Committee concerned or Council, as the case may be, to be disposed of in accordance with the directions of the court or sheriff.

and may make such order as costs ... as it, or he, as the case may be, thinks fit."

"he" is a reference to the fact that in the Scottish jurisdiction the decision maker is a different court.

13. There is no dispute that the appeal is conducted under and regulated by Civil Procedure Rules Part 52 which provides at 52.11:

"1) Every appeal will be limited to a review of the decision of the lower court unless –

(a) a practice direction makes different provision for a particular category of appeal; or

(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

(2) Unless it orders otherwise, the appeal court will not receive –

(a) oral evidence; or

(b) evidence which was not before the lower court.

(3) The appeal court will allow an appeal where the decision of the lower court was –

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

(4) The appeal court may draw any inference of fact which it considers justified on the evidence.

(5) At the hearing of the appeal a party may not rely on a matter not contained in his appeal notice unless the appeal court gives permission."

14. The basis on which the appellant appeals in this case is that the decision of the Committee was wrong within the meaning of Part 52.11(3)(a), not that it was unjust because of any serious procedural or other irregularity under 52.11(3)(b) no such procedural or other irregularity being alleged in this case.
15. As regards the first ground, in my judgment the decision of the Administrative Court of Langstaff J in Bhatt v General Medical Council [2011] EWHC 2783 contains the best distillation of the principles to be applied in an appeal of this nature. Langstaff J said this:

"The Court's Approach.

An appeal under s.40 of the 1983 Act is by way of rehearing (CPR Part 52, PD 22.3). This court will allow an appeal where the decision of the lower tribunal was wrong or unjust because of a serious procedural or other irregularity in the proceedings before the lower tribunal (CPR Part 52.11).

In Dr. Bhupinder Sacha v General Medical Council [2009] EWHC 302 (Admin) Lloyd-Jones J. reflected at paragraph 8 on what this implied:

'In considering these matters, I bear in mind, and I give appropriate weight to, the fact that the Panel is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect, and that it has had the advantage in this case of hearing the evidence from live witnesses. (See the observations of Auld LJ in Meadow v General Medical Council [2007] QB 462, [2006] EWCA 1390 at paragraphs 125 and 197). I also have in mind the observation of Laws LJ in Fatnani and Raschid v General Medical Council [2007] 1 WLR 1460, [2007] EWCA Civ 46 at paragraph 20, that on an appeal under section 40: '... the High Court will correct material errors of fact and of course of law and it will exercise a judgement, though distinctly and firmly a secondary judgement, as to the application of the principles to the facts of the case.'

6. In Southall v General Medical Council [2010] EWCA Civ 407, Lord Justice Leveson gave further guidance (at paragraph 47):

'First, as a matter of general law, it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable (see Benmax v Austin Motor Co Ltd [1955] AC 370); more recently, the test has been put that an appellant must establish that the fact-finder was plainly wrong (per Stuart-Smith LJ in National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1995] 1 Lloyd's Rep 455 at 458). Further, the court should only reverse a finding on the facts if it 'can be shown that the findings … were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread' (per Lord Hailsham of St Marylebone LC in Libman v General Medical Council [1972] AC 217 at 221F more recently confirmed in R(Campbell) v General Medical Council [2005] 1 WLR 3488 at [23] per Judge LJ). Finally, in Gupta v General Medical Council [2002] 1 WLR 1691, Lord Rodger put the matter in this way (at [10] page 1697D):

'In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position.'

7. All that said, it nonetheless remains for a court – in 'appropriate cases', and if 'necessary' - to come to its own view and substitute that for the decision of a disciplinary body (per Auld L.J. in Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] QB 462, at paragraph 120, albeit that he too recognised that the courts should accord disciplinary bodies assessing evidence of professional practice in their respective fields an appropriate measure of respect). At paragraph 128 he added:

'Given the structure of CPR 52.11, the difference between a 'review' and a 're-hearing' is clearly thin and variable according to the circumstances and needs of each case, not least in the stipulation in CPR 52.11(2) of the norm for both processes of no oral evidence or evidence not before the lower court. The analysis of May LJ in E.I. Du Pont Newmours & Co v S,T, Du Pont [2003] EWCA Civ 1368, CA, at paragraphs 92-98, is instructive on the overlap between the two, namely that a 're-hearing' in rule 52.11(1) may, at the lesser end of the range, merge with that of a 'review', and that '[a]t this margin, attributing one label or the other is a semantic exercise which does not answer such questions of substance as arise in any appeal'. But even when a review is a full re-hearing in the sense of considering the matter afresh, if necessary by hearing oral evidence again and, even admitting fresh evidence, the appellate court should still, said May LJ at paragraph 96, 'give to the decision of the lower court the weight that it deserves'. This elasticity of meaning in the word 're-hearing' in CPR 52 11 should clearly apply also to the same word in the PD. It all depends on the nature of the disciplinary tribunal, the issues determined by it under challenge and the evidence upon which it relied in doing so, how the High Court should approach its task of deciding whether the decision of the tribunal was, as provided by CPR 52.3(a) 'wrong', and, whether on the way to reaching such a conclusion, it draws, pursuant to CPR 52.4 'any inference of fact which it considers justified on the evidence'."

Omitting paragraph 8 from Langstaff J's decision, he continued at paragraph 9:

"I accept and adopt the approach outlined in these authorities, in particular that although the court will correct errors of fact or approach:

i) it will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;

ii) that the tribunal has had the advantage of hearing the evidence from live witnesses;

iii) the court should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body;

iv) findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from; (emphasis added)

v) but that where what is concerned is a matter of judgement and evaluation of evidence which relates to police practice, or other areas outside the immediate focus of interest and professional experience of the FTPP [the Fitness to Practise Panel], the court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be 'wrong' or procedurally unfair."

16. In the course of his judgment, the lengthy citation of which I have just read, he refers to the decision in Southall. In Southall Leveson LJ, in analysing the relevant authorities cited with approval two passages that in my judgment are relevant to this appeal. Firstly, the speech of Lord Hope in Selvanathan v General Medical Council (2000) 59 BMLR 96, who said at page 103:

"Their Lordships consider that, in practice, reasons should now always be given by the Professional Conduct Committee for their determination … whether or not they find the practitioner to have been guilty of serious professional misconduct and their decision on the question of penalty. Fairness requires this to be done, so that the losing party can decide in an informed fashion whether or not to accept the decision or to appeal against it… (emphasis added)"

Secondly he cited with approval the endorsement by the President (Sir Mark Potter) of the observations of Wall LJ, both delivering judgments in English v Emery Reimbold [2002] 1 WLR 2409, concerning the interrelation of the decisions in Gupta and the principles enunciated in English and he went on to say at page 106:

""The latter case made clear that the so-called 'duty to give reasons', is essentially a duty which rests upon judicial and quasi-judicial tribunals to state their decisions in a form which is sufficient to make clear to the losing party why it is that he has lost (emphasis added). This requirement will be satisfied if, having regard to the issues as stated and decided and to the nature and content of the evidence in support, the reasons for the decision are plain, whether because they are set out in terms, or because they are implicit i.e. readily to be inferred from the overall form and content of the decision."

Drawing from these sources Leveson LJ continued thus:

"55. For my part, I have no difficulty in concluding that, in straightforward cases, setting out the facts to be proved (as is the present practice of the GMC) and finding them proved or not proved will generally be sufficient both to demonstrate to the parties why they won or lost and to explain to any appellate tribunal the facts found. In most cases, particularly those concerned with comparatively simple conflicts of factual evidence, it will be obvious whose evidence has been rejected and why. In that regard, I echo and respectfully endorse the observations of Sir Mark Potter.

56. When, however, the case is not straightforward and can properly be described as exceptional, the position is and will be different. Thus, although it is said that this case is no more than a simple issue of fact (namely, did Dr Southall use the words set out in the charge?), the true picture is far more complex. First, underlying the case for Dr Southall was the acceptance that Mrs M might perfectly justifiably have perceived herself as accused of murder with the result that the analysis of contemporaneous material some eight years later is of real importance: that the evidence which touched upon this conversation took over five days is testament to that complexity. Furthermore it cannot be said that the contemporaneous material was all one way: Dr Corfield's note (and, indeed, her evidence) supported the case that it was (or at least could have been) Mrs M's perception alone. Ms Salem's note (accepted by Mrs M as 100% accurate so far as it went) did not support the accusation and her evidence was that if those words had been said, she would have recorded them. I am not suggesting that a lengthy judgment was required but, in the circumstances of this case, a few sentences dealing with the salient issues was essential: this was an exceptional case and, I have no doubt, perceived to be so by the GMC, Dr Southall and the panel.

57. Perhaps because of the nature of the case, the panel did, of course, provide a few sentences of reasons but, in my judgment, they were simply inadequate and did not start to do justice to the case."

So much for the legal guidance that I rely upon as to the first ground of appeal.

17. As regards the second ground of appeal, in Libman to which I have already referred the Lord Chancellor, Lord Hailsham said this between pages 220F and 221G:

"...their Lordships draw the following general propositions from all four decisions:

(1) The appeal lies of right by the statute and the terms of statute do not limit or qualify the appeal in any way, so that the appellant is entitled to claim that it is in a general sense nothing less than a rehearing of his case and a review of the decision: see per Lord Radcliffe, Fox v General Medical Council 1961 WLR 1017 at 1020.

(2) Notwithstanding the generality of the above language, the actual exercise of the jurisdiction is severely limited by the circumstances in which it can be evoked. The appeal is not by way of rehearing in the sense that the witnesses are heard afresh or the evidence gone over again (see per Lord Radcliffe). This, amongst other things, means that there is a heavy burden upon an appellant who wishes to displace a verdict on the grounds that the evidence alone makes the decision unsatisfactory.

(3) Beyond the bare statement of its findings of fact, the Disciplinary Committee does not in general give reasons for its decision as in the case of a trial in the High Court by judge alone from which an appeal by way of rehearing lies to the Court of Appeal (see per Lord Radcliffe, at pp 1021, 1023). It follows from this that the only circumstances in which an appellate court can reverse a view of the facts taken by the Disciplinary Committee would be a case where, on examination, it will appear that the committee had misread the evidence to such an extent that they were not entitled to make a finding in the state of the evidence presented before them.

(4) The legal assessor who assists the committee at its hearing is not a judge, and his advice to the committee is not summing up, and no analogy with a criminal appeal against a conviction before a judge and jury can properly be drawn. The legal assessor simply advises the committee in camera on points of law and reports his advice in open court after he has given it. The committee under its president are masters both of law and of the facts and what might amount to misdirection in law by a judge to a jury at a criminal trial does not necessary invalidate the committee's decision. Where a criticism is made of the legal advisers account of adviser's account of his advice the question is (I emphasise the following words) whether it can fairly be thought to have been of sufficient significance to the result to invalidate the decision: see Fox v General Medical Council [1961] 1 WLR 1017 and per Lord Guest in Sivarajah v General Medical Council [1964] 1 WLR 1112, 116-117 (emphasis added)."

18. Thus, it seems to me that in alleged misdirection cases two quite distinct questions must be addressed, namely: firstly, was there is a material misdirection and, if so, secondly, was it of sufficient significance to the result to invalidate the decision? Mr Dickason submits that the present case is on all fours with the circumstances in Hassan v General Optical Council [2000] EWHC 1887, in that he submits the application or the direction of the application of Sharma gave the Committee the erroneous impression that striking off would be appropriate in all cases of dishonesty absent exceptional circumstances. That such a direction therefore was a misdirection, which was both material and had significant effect on the outcome because the Committee recorded its acceptance of the advice that it had been given by the legal adviser.
19. I turn then to the factual background. It is sufficient in my judgment, for the purpose of this appeal, to turn to two parts of the evidence only. The first is the Decision Letter itself and the second is the drug testing report referred to in it. The Decision Letter appears at pages 1 to 21 of the bundle and what in my judgment are the material portions are expressed in the following terms:

"Decision on impairment (September 2013)

In determining whether or not your fitness to practise is currently impaired by reasons of your caution, the Panel bore in mind that there is no burden or standard of proof and that that is a matter for the panel's own judgment.

The panel reminded itself of its duty to protect patients and to maintain public confidence in the profession and the regulatory process which includes the declaring and upholding of proper standards of conduct and behaviour."

The Committee then set out certain submissions and evidence and continued:

"In your reflective piece, you stated that 'My misconduct was not acceptable due to the fact that the public have trust in nurses to behave in a professional manner.' You also stated that 'even though no harm was brought' by your misconduct, looking back you 'can see the 'warning signs' and how things could have been solved by either talking or accessing help from others.' You further stated that 'I would like to take this opportunity to state how very remorseful I am with regards to my conduct... I felt desperate and was not thinking logically at that time, which shows how far out of character this whole misconduct is."

Again, the Committee then condescend to detail submissions made on behalf of both the Council and the appellant and then continue in following terms:

"The panel had regard to the Code and considered that the following parts of the preamble were of relevance in this case;

'The people in your care must be able to trust you with their health and wellbeing.

To justify that trust, you must:

- be open and honest and act with integrity and uphold the reputation of your profession.'

The panel found that the numbered parts of the Code that were relevant in this case and which you have breached by your actions, are:

'49 You must adhere to the laws of the country in which you are practising.

61 You must uphold the reputation of your profession at all times.'

The panel notes that the NMC defines fitness to practise as a registrant's suitability to remain on the register without restriction. The panel reminded itself that it should consider not only the risk that you present to members of the public, but also the public interest in upholding proper professional standards and public confidence in the NMC as a regulator, and whether that confidence would be undermined if a finding of impairment were not made in the circumstances."

20. The Panel then directed itself to have regard to paragraph 76 of the code in the following terms:

"'76. Do our findings of fact in respect of the doctor's misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he.

a. has in the past acted and/or is liable in future to act so as to put a patient or patients at unwarranted risk of harm; and/or

b. has in the past or is liable in the future to bring the medical professional in disrepute; and/or c. has in the past breached and/or liable in the future to breach one of fundamental tenets of the medical profession; and/or.

d. has in the past dishonestly and/or is liable to act dishonestly in the future.'

The panel found that by stealing drugs from the ward, you brought the profession into disrepute; your lack of honesty and integrity breached a fundamental tenet of the nursing profession and of course you acted dishonestly.

The panel took into account your personal difficulties, which included the death of two relatives and the health issues raised. The panel also took into consideration your reflective piece, the references and the certificates provided.

The panel noted that your lengthy reflective commentary included considerable criticism of your managers and a limited acceptance of personal responsibility for your actions. Having also read the statements from your managers, the panel consider that they offered you support and it was your choice not to discuss your personal issues with them. The panel also considered that you fail to appreciate the enormity of your actions. The panel therefore had serious concerns in relation to your insight.

The panel were concerned about the potential of you misusing drugs. During evidence the panel were directed to a Trimega report dated 19 June 2012. This report contained results from a hair test carried out from early November 2011 to early February 2012, where you tested positive for Nor-Tramadol. The report states that 'this is evidence that tramadol had been consumed on multiple occasions by [you] during the approximate 90-day period...' In response to this, during your evidence, you stated that you only took tramadol once in November but that you had a dental procedure at the end of 2010 or the beginning of 2011, in which the dentist gave you tramadol as pain relief. The panel prefers the evidence of the Trimega expert and finds that you have been taking tramadol during the period when you denied so doing.

The panel is not satisfied that you have remedied your behaviour. It is difficult to remedy dishonesty and having found that you did not tell the truth in your evidence about your continued use of tramadol, the panel finds that you remain dishonest and is therefore not satisfied that you would not repeat your behaviour in the future. The panel considers that there remains a real risk of repetition.

The panel determines that the act of stealing drugs from your employer fell far below the standards expected of a registered nurse. It is in breach of the fundamental tenets of the nursing profession and brings the profession into disrepute. Such behaviour undermines the trust and confidence the public has in the profession and the NMC as a regulator. The offence is so serious that a finding of current impairment must be made to uphold public confidence in the profession and to declare and uphold proper standards of behaviour.

For these reasons set out above, the panel finds that your fitness to practise is currently impaired by reason of your caution.

Decision on Sanction (September 2013)

Having determined that your fitness to practise is impaired, the panel considered what sanction, if any, it should impose. In reaching its decision on sanction, the panel has considered all the evidence that has been placed before it and accepted the advice of the legal assessor."

The Panel then sets out at some length the competing submissions that were made in the case and continues:

"The panel has applied the principles of fairness, reasonableness and proportionality, weighing the public interest with your interests taking into account the mitigating and aggravating factors in the case. The public interest includes the protection of the members of the public including patients, the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour within the profession. The panel has taken account of the Guidance, bearing in mind that the decision on sanction is one for its own independent judgment."

Pausing there for a moment, the reference to "guidance" is a reference to the Indicative Sanctions Guidance to which I make more reference later in this judgment. The Panel continued:

"The panel recognises that the purpose of sanctions is not to be punitive, although a legitimate sanction may have a punitive effect.

Under Article 29 of the Nurse Midwifery Council Order (2001) the panel should consider the following sanctions in ascending order: (I emphasis those words) take no action; make a caution order for one to five years; make a conditions practice order for no more than three years; make a suspension order for a maximum of one year; or make a striking off order.

The panel considered the potential sanctions in ascending order.

The panel first considered taking no action. The panel had regard to its previous findings and decisions. The panel decided that this would be wholly inappropriate due to the serious nature of your actions. Action is required to both ensure public trust and confidence in the profession and to declare and uphold proper standards of conduct and behaviour.

The panel then considered whether a caution order would be appropriate. The panel has taken account of The Guidance as it relates to caution orders. It was the panel's judgment that a caution order would not be sufficient to protect the public or mark the gravity of the offence. It found that this was not a case that is at the lower end of the spectrum of impaired fitness to practise. The panel also concluded that this would not be proportionate, given the serious nature of your dishonesty.

The panel next consider whether placing conditions of practice on your registration would be sufficient and proportionate response. The panel is mindful that any conditions imposed must be appropriate, measurable and workable. The panel took account of The Guidance. The panel carefully considered the draft proposed conditions provided to it by you.

The panel considered the findings of dishonesty and it is not of the view that conditions could be formulated which could remediate or prevent a repetition of your actions. The panel concluded that conditions of practice on your registration would not adequately address the seriousness of this case and would not protect the public interest given the nature of the misconduct, in particular relating to your dishonest actions when you stole from your employer.

The panel then went on to consider whether the suspension order be an appropriate sanction. Paragraph 71 indicates that a suspension order may be appropriate where some of the following factors are present:

'71.1 A single instance of misconduct but where a lesser sanction is not sufficient.

71.2 The misconduct is not fundamental incompatible with continuing to be a registered nurse or midwife in that the public interest can be satisfied by a lesser severe outcome than permanent removal from the register.

71.4 No evidence of repetition of behaviour since the incident.

71.5 The panel is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating the behaviour.'

The panel noted that you have engaged with the NMC process and made admissions at an early stage, when questioned by the police. The panel also noted that this was a single incident of misconduct and there was no evidence of direct patient harm. The panel considered the references provided by your current employer and your personal circumstances leading up to the incident.

The panel noted that you have shown some expression of remorse and insight. However, the panel is concerned that you have not told it the truth during the hearing. The panel notes that on a number of occasions you have been questioned about the expert findings from the Trimega hair tests results in which there was '... evidence that tramadol had been consumed on multiple occasions by [you] during the approximate 90-day period...' The panel found that by not being truthful during these proceedings, you have demonstrated that you continued to be dishonest and untrustworthy and that is fundamentally incompatible with continuing to be a registered nurse.

The panel therefore concludes that a period of suspension would not be sufficient to address the seriousness of the misconduct and maintain trust and confidence in the profession. The panel gave careful consideration to making a suspension order but found that such an order was insufficient having regard to the serious dishonesty shown by you from stealing drugs from your employer which was compounded by you telling lies to the panel in your evidence on oath.

Finally, in considering a Striking-off Order the panel took note of the following paragraphs of the Indicative Sanctions Guidance.

'74.1 Is striking-off the only sanction which will be sufficient to protect the public interest?

74.2 Is the seriousness of the case incompatible with ongoing registration.

74.3 Can public confidence in the professions and the NMC be sustained if the nurse or midwife is not removed from the register?

75 This sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a registered professional.

75.1 Serious departure from the relevant professional standards as set in key standards, guidance and advice.

75.6 Dishonesty, especially where persistent or covered up.

75.8 Convictions or cautions involving any conduct or behaviour, set out above.'

Your actions were significant departures from the standards expected of the registered nurse, and are fundamental incompatible with you remaining on the register. The panel was of the view the findings in this particular case, including your continued lying to the panel are serious and to allow you to remain on the register would undermine public confidence in the profession and in the NMC as a regulatory body.

Balancing all of these factors and having taken into account all the evidence before it during the case, the panel determined that the only appropriate and proportionate sanction is that of a striking-off order. Having regard to the matters identified, in particular the effect of your actions in bringing the profession into disrepute by adversely affecting the public's view of how a registered nurse should conduct herself, the panel has concluded that nothing short of this would be sufficient in this case.

The panel considered that this order was necessary to mark the importance of maintaining public confidence in the profession, and to send to the public and the profession a clear message about the standard of behaviour required of a registered nurse.

The panel noted that being removed from the register may cause hardship to you. However, the panel is satisfied that public interest and public protection considerations outweigh your interests.

The panel therefore directs the Registrar to strike you off the Register."

21. So that is the detailed decision-making process that the Committee engaged in. They referred to the Trimega Report. The relevant passages in that report which is included its entirety between pages 24 and 33 of the hearing bundle are in following terms:

"4. I received a copy of hair drug test results from Trimega Laboratories in which the analyst reported variably Negative and Positive findings on two segments of a head hair sample identified as a originating from Miss Mafico, representing the total approximate six month (180-day) time period from early November 2011 to early May 2012."

22. At section 6 the report describes in respect of the target substances in this case namely Tramadol and Nor-Tramadol which is Tramadol's metabolite what is described as a cutoff level of 0.5 nanograms per milligram. That cutoff level representing the level below which the result is considered negative and above which the result is considered to be positive.
23. At paragraph 8 of the report, it is recorded that one hair segment was tested as negative but a second hair strand tested was positive for Nor-Tramadol, that is the metabolite, the level found being 0.06 of a nanogram per milligramme and of that positive result paragraph 8 states:

"A Positive result indicates that the substance noted herein was detected as a concentration equal to or greater than its listed Cut-Off level."

Thus it is that a negative result does not demonstrate a 0 finding but only a finding below the cutoff level. The most material paragraphs in my judgment are paragraphs 9 to 13 in the following terms:

"9. The forensic drug tests for the first (proximal; closest to the head) segment of the hair sample from Ms Mafico, representing the approximate three months from early February to early May 2012, were reported as Negative for Tramadol. These results did not provide evidence of the use of Tramadol or multiple occasions by Ellen Farai Sigobile Mafico during the approximate 90 days represented by this 'first portion' of the hair collected, segmented and subjected to testing.

10. The forensic drug tests for the second (more distal; farther from the head) segment of hair from Ms Mafico, representing the approximate three month period from early November 2011 to early February 2012, were reported as Positive for Nor-Tramadol. This is evidence that tramadol has been consumed on multiple-occasions by Ellen Farai Siqobile Mafico during the approximate 90-day period represented by this second segment.

11. When drugs are ingested, the body's chemistry reacts with them to form 'metabolites' of these drugs, and they are incorporated in hair as a combination of the drug and its metabolites. Forensic hair drug tests applied may detect the parent drug and also its metabolites. The detection of drugs and metabolites in the hair is a positive indicator that the drug was ingested and absorbed by the body. Even if the absence of a metabolite, positive results are not expected to arise unless drugs are ingested on multiple occasions during the period represented by the hair specimen test. Under this interpretation, drugs and metabolites are incorporated in the core of the hair; and are not due to external contamination.

12. Tramadol is a centrally-acting analgesic that is generally used to treat moderate to severe pain related to deep muscle injuries. Due to its actions in the body and chemical structure, it falls into the category of pharmaceuticals known as 'Opiods', has primary bio-activity on a specific opiod receptor, and is commercially available in many different topical, injectable and oral forms. Physicians have routinely argued against some unfounded claims (including by those who abuse the substance) that the drug may alleviate symptoms of depression, anxiety and phobias. No clinical studies have proven the usefulness of tramadol for these founded 'alternative' applications.

13. Tramadol is chemically referred to as a 'nitrogenous base'. Significant research has been performed to attempt to characterise whether Positive hair drug testing levels represent low, medium or high levels of use for such nitrogenous serious bases. There is a basic presumption in all forensic drug testing that drugs deposited in urine, blood, hair and other body sites in proportion to the amount of the drug that was used. This is not always true, because there are many factors that can affect the quantity of drug that enters a biological site - including the hair shaft - while it is growing."

24. Mr Dickason submits that there are three significant caveats with which he submits this material must be read. Two of them relate to what is said in the first and second paragraphs of, so to speak, appendix to this report and are to be found at page 30 of the bundle in the following terms:

"Please note:

This data was acquired from the analysis of hair strands that were submitted for a variety of reasons. They were made anonymous to preserve privacy and did not involve controlled dosing of drugs to human subjects. The guideline are therefore subject to numerous sources of variability (eg purity of street drugs; inaccurate self-reports, drug use patterns and uses; large intra-individual variations affecting drug metabolism and incorporation; etc).

This information is for guidance only and should not be used for an exact numerical interpretation. It may be useful to compare two separate time periods or to help establish an appropriate type of rehabilitation programme. However, even for the same individual, it may not be appropriate to compare testing results of one sample of segment of hair with another sample of segment. Care should be exercised to avoid over-interpretation of laboratory findings when evaluating potential sources and behaviours related to drug use history of the tested donor."

25. Mr Amesbury, who appears for the respondent rejects that submission and he relies on two points. The first derives from the third paragraph in that appendix, again at page 30, in the following terms:

"The following drugs/drug types (classes) do not lend themselves to inclusion in this guidelines: [then a number of categories listed, one of which is] opioids. "

26. The other caveat relied upon by Mr Dickason derives, as I have indicated, from paragraph 13. But before I turn to that I should say that the identification in the third paragraph, excluding opioids from the guidance is correctly, in my judgment, relied upon by Mr Amesbury and disapplies the page 30 caveats from this case because this case is about opioids and so the general guide to interpretive levels at page 29 and the guidance given relating to them at page 30, in my judgment, never had any application to the opioids, that were the subject of these proceedings.
27. The other caveat relied upon, as I have already said, derives from paragraph 13, but in my judgment that begs questions that were never asked in this case: about how much Tramadol the appellant took? How concentrated or pure it was? How consistent that was, if she was believed about use on a single occasion, with the test result? At the very least it seems to me that this required further factual evidence from her (which she never gave) and also either challenge to the Trimega Report by cross-examination or even, reliance upon her own expert evidence, if opinion contrary to the report were to be relied upon. She never availed herself of such opportunities and so the Trimega Report essentially was the unchallenged toxicological evidence in this case.
28. Mr Dickason submits that this was a complex case in the Southall sense and therefore that detailed or at least more detailed reasons needed to be given than were given. He also submits therefore the Committee should have explained why they accepted the report instead of the testimony and in doing so they should have taken into account when testing the weight of the testimony that the test result being proportionate to the level of ingestion was consistent with single use, single occasion use; was likely to be affected by purity - this was pharmacological grade, ie pure drug; that there was no evidence that she had obtained firm medication to use after that which was in her possession and was removed by the police; that there was no history of drug taking and that the later hair sample was negative, although that only meant below the so-called cutoff level.
29. Mr Amesbury, to the contrary, submits that this was a straightforward case in the Southall sense, that simply asked for a view to be formed as to whether this was use on a single occasion, as the appellant maintained, or whether the toxicology evidence that a positive result would not be expected unless drugs were taken on multiple occasions was to be preferred.
30. Bearing in mind the guidance in Southall to which I have already made reference, this was, in my judgment, a straightforward case in which it will generally be sufficient, both to demonstrate to the parties why they won or lost and to explain to any appellate Tribunal the facts found. The reason was that the expert evidence was unchallenged. To have preferred the testimony of the appellant the Committee would have to have rejected the unchallenged expert evidence. The Committee had no evidence based ground upon which to do so. That would have amounted to substituting their own relatively lay judgment for that of the expert toxicologist. That, in my judgment, would have been wrong. The reason for the preference was stated: it was contrary to what would have been expected and it was the opinion of an expert. That opinion, on the evidence in this case, was not challenged. Any more elaboration than they gave, such as is contended for by Mr Dickason, would have been mere repetition and would have taken the matter no further. In all of those circumstances for those reasons, ground 1 fails.
31. As to ground 2, I do not accept Mr Dickason's reliance on Hassan. It is a decision that is persuasive and weight should be given to it. I am bound however by Libman as a matter of authority. With respect to Leggatt J, he does not, in my judgment, ask or then answer the second stage question posed in Libman. Rather, at paragraph 41 of his judgment he concluded that:

"I conclude that, in advising the Fitness to Practise Committee in this case that it was proper for the Committee to apply the principles set out in Sharma, the legal adviser misdirected the Committee. The fact that the Committee approached the matter in its reasons starting with the least severe sanction does not demonstrate that they ignored the advice they were given or did not act on it. In my view the misdirection as to the proper legal approach was material and for that reason the decision reached by the Committee must be quashed."

32. In my judgment, that passage indicates to me a finding that there was a material misdirection, and that that was the reason for the decision being quashed, without any consideration of the second question posed in the relevant speech in Libman that I have already recited earlier in this judgment. Moreover, in my judgment, there are several points of distinction between Hassan and this case that are highly relevant. They include firstly, that the qualification to Sharma expressed in Parkinson v NMC [2010] EWHC 1898, which was not referred to the Panel in Hassan, was referred to the Committee in this case. There are many references to demonstrate that, including the third paragraph of page 4 of the Decision Letter, the fifth paragraph of page 7 of the Decision Letter and the reference to the Indicative Sanctions Guidance in which at paragraph 40, page 189 of the bundle before me, there is explicit reference to Parkinson.
33. Secondly, the matters taken into account by the Committee were much more carefully and extensively set out in the Decision Letter than they were in Hassan, not only as to the Article 29 point of dealing with sanctions in ascending order but also the general incorporation by reference to the Indicative Sanctions Guidance, but also the particular references to paragraph 71, 74 and 75 thereof, to which I have drawn attention earlier in this judgment. It seems to me, this was a decision-making process undertaken by the relevant Panel in exercising its professional judgment to which respect should be accorded for all the reasons set out in the authorities that I have drawn attention to earlier in this judgment.
34. Thirdly, whereas the reasoning of the Panel in Hassan ran to but four short paragraphs over half a page in that report, in this case the reasons given by the Committee were much more extensive, running to some four single spaced pages of detailed analysis. I have come to the conclusion that if reference to Sharma constituted a misdirection, and I am prepared to accept for present purposes that without explicit reference to Parkinson it might have, it was not material and it certainly cannot be demonstrated that it had such a significant effect on outcome as to invalidate the decision, even though this Committee recorded its acceptance of the advice of the legal adviser. If and in so far as that was based on Sharma, that is not what the Committee did when approaching its decision making as to sanction which is set out in the detailed extract from its reasons that I have included earlier in this judgment.
35. In all of those circumstances, I have come to the conclusion that the core and central issue of fact which was for the Panel to decide was a simple and straightforward issue and which depended in part, at least, on its evaluation of the appellant as a live witness. They measured that performance against the improbability of the test result contained in the unchallenged expert report from Trimega. In so conducting itself it made a judgment, based on evaluation of the evidence, for which it gave reasons, which is within its entitlement and based on its professional experience and one in respect of which therefore the decision is not only close to being unassailable, as described by Langstaff J in Bhatt but certainly has not been shown with reasonable certainty to be wrong and therefore does not justify me departing from that conclusion. That is why, in my judgment, the first ground, as I have already declared, must fail. As regards the second ground, in my judgment, for the reasons that I have given, but also mindful of the fact that at the end of the day it is a matter for the professional judgment and experience of the regulatory body to make sanctions decisions such that it made in this case, in my judgment the second ground of appeal is also deemed to failure. For all of those reasons this appeal fails.
36. HIS HONOUR JUDGE GORE: Yes Mr Amesbury?
37. MR AMESBURY: My Lord, there is an application for the respondent's costs.
38. HIS HONOUR JUDGE GORE: Is there a statement?
39. MR AMESBURY: There is a schedule.
40. HIS HONOUR JUDGE GORE: I have not got it.
41. MR AMESBURY: You do not my Lord.
42. HIS HONOUR JUDGE GORE: Is there any reason why I have not got it?
43. MR AMESBURY: There is a late explanation for why it is late. It ought to have been filed previously. It was prepared yesterday by me and I apologise.
44. HIS HONOUR JUDGE GORE: Has Mr Dickason seen it?
45. MR AMESBURY: He has.
46. HIS HONOUR JUDGE GORE: Mr Dickason?
47. MR DICKASON: My Lord, I take no issue with figures and/or timed rates set out in the schedule. I ask you nonetheless to make no order as to costs for reasons relating to the appellant's circumstances, namely that she has no employment and no savings, no assets. This case has been funded by way of bank loan from our side, so it has no prospect of such order. That is what I invited you to do.
48. HIS HONOUR JUDGE GORE: Whether it is enforceable or not is a different matter but it does not alter the principle that in the ordinary course costs follow the event. Therefore, with regret, but not with any reluctance, I am driven to the conclusion that Mr Amesbury must have his costs and if you do not object to the amount of those costs, the order that I make is that the appellant pay the respondents costs, summarily assessed in the sum of £3,826.
49. MR AMESBURY: My Lord I am grateful.
50. HIS HONOUR JUDGE GORE: Anything else gentlemen?
51. MR DICKASON: No thank you.
52. HIS HONOUR JUDGE GORE: I apologise for the time it took but I felt that in a case of this nature, whatever the outcome, the parties were entitled to a reasoned decision as promptly as could be delivered. I am grateful to both of you, to the appellant and her representative and her family, the presence of whom I acknowledge now and also to the court staff for having sat to this hour so that these proceedings could be concluded today.
53. MR AMESBURY: We are very grateful.
54. HIS HONOUR JUDGE GORE: I think we will need to retain file at least for the time being and there should be a thank you very much for agreement to sit late as I fear I anticipated would be required.