England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		20 February 2014

1. MR JUSTICE BLAKE: This is an appeal by Mrs Osammor from a decision of the Conduct and Competence Committee of the Nursing & Midwifery Council ("NMC") that was communicated in writing on 12 September 2013 following a hearing that had taken place between 2 and 10 September 2013. At the conclusion of the hearing, in the decision letter it was explained that a number of charges of misconduct had been found proved, that the factual findings amounted to misconduct within the contemplation of the Regulations and impairment was found. They went on to consider sanction and concluded that in all the circumstances, as they saw them, in total, the conduct was so serious that the only appropriate sanction was striking off the Register.
2. In essence, this appeal is based on the contention that that sanction was too severe and in reaching that conclusion the committee failed to take account of a proportionate sanction having regard to certain factors relied upon by the appellant as mitigating and cumulatively justifying a departure from the presumption in the Indicative Sanctions Guidance that conduct of this sort would normally expect to lead to striking off. The reason why, on the facts found by the panel, striking off would normally be considered the only sanction sufficient to protect the public interest is because the allegations were of a course of conduct of dishonesty. It is therefore necessary to explain in some summary terms what that course of conduct was.
3. In the autumn of 2008 the appellant was employed as a midwife at Homerton Hospital, East London. After some investigation into a clinical problem over a child who died, a decision was taken that the appellant should be placed on a period of supervision or supervised practice with respect to four particular areas. There was a meeting on 31 October 2008 attended by the Acting Head of Midwifery, the Delivery Suite Manager, the Supervisor of Midwives and the appellant. A minute of the meeting that the appellant relied upon said that supervised practice would commence on 5 January 2009 and, elsewhere, that the appellant was told -

"During your supervised practice you cannot work anywhere else until the supervised practice is completed."

The details of what supervised practice involved was also in a letter sent to the appellant's address by recorded delivery, for which she signed. But she says she did not in fact read it because she was about to go away, and when she returned the letter had gone missing. She believed someone had taken it.

4. The fact of the matter is that the appellant did accept (this formed charge 1 of the disciplinary proceedings) that she undertook agency work from the following day 1 November 2008 right through to 11 December 2008. It seems it was only on that day that the agency that was providing the appellant with work became aware of the supervised practice direction and its implications, because the agency work - of which I think there are twenty-two instances set out in the schedule - was all at hospitals outside Homerton Hospital and necessarily therefore not supervised. When this came to light the appellant was dismissed from her employment by Homerton Hospital, and also an NMC investigation into these matters was commenced in 2009.
5. It is sufficient to note at this stage that the appellant's account of what she thought were the limits to her ability to take work was not accepted by the panel because they heard direct evidence from the participants at the meeting to the effect that the appellant had been left in no doubt that she was not to undertake any work forthwith which was unsupervised, as opposed to no work, from 5 January which is when the supervision started. To that extent the minutes were accepted not to be entirely full and the ambiguity as to what the word "during" meant was clarified, according to the panel's finding, by live witnesses present.
6. The other charges concern what then happened with the appellant's subsequent career as a midwife. Essentially, she went to work at Lewisham Hospital. Lewisham Hospital was made aware that she was subject to supervised practice and a supervisor was appointed. At some stage, possibly at the end of 2009 or early 2010, that supervision had come to an end and Lewisham regarded the appellant as a competent and useful midwife and suggested that she might want to apply for permanent employment with them. She did so.
7. What then happened was that she filled out a form (and I think it is more than one) where the specific question was asked whether she was subject to ongoing proceedings before the NMC and she gave the answer no. It is also the case that one of the charges made against her was that during the job interview which resulted in this application she had not mentioned that there were these proceedings. That charge was not found proven because the panel accepted that she had mentioned in general terms that she had a small problem that was pending. The appellant also suggested that her supervisor must have known that the fact she was subject to supervised practice would suggest some explanation for a problem with the NMC.
8. Thereafter the panel found proved that she had misled members of staff who were responsible for her supervision and employment as to the nature of the small problem, and in particular suggesting it was only to do with the need for supervision rather than the charge pending which had not yet been determined was a count of dishonesty, in misrepresenting, by conduct with the agency back in 2008, that she was entitled to undertake agency employment when she was subject to supervised practice. There were at least two occasions which the panel found proven where she had told people with responsibility at Lewisham that it was a small matter, only concerned with the supervision practice rather than the allegation of dishonesty.
9. The proceedings did take some time to come to fruition in 2013. That is because the investigation that began in 2009 about the matters arising in the autumn of 2008 became merged in the early part of 2012 with the new allegations that she had misled her responsible management at Lewisham Hospital as to her disciplinary status and nature pending unresolved disciplinary proceedings.
10. At a hearing originally designed to deal with all the matters in February 2012 new charges were put. They were adjourned to enable the appellant to have time to deal with them. In due course the new charges had to go through a certain sifting procedure. The matter was dealt with in September 2013. For the panel, the way that the appellant sought to explain and minimise her conduct both in 2008 and in 2010 became relevant to the question of sanction. In particular, she said that her supervisor had advised her that she could put "no" when filling in the form asking the question, with a view to employment, as to whether there were any problems with her previous employment and whether she was subject to disciplinary proceedings. The supervisor disputed that that advice had been given. The panel accepted the supervisor's evidence and rejected that of the appellant.
11. Moreover, another person who knew of the appellant's performance as a midwife in Lewisham was called on her behalf as a character witness. When giving live evidence before the panel this witness confirmed that she had not been made aware of the extent of the NMC proceedings and in particular that an allegation of dishonesty was being made. That left the appellant's advocate - who, we understand, was a registered nurse with some experience of the proceedings - to seek to abandon the character witness and submit that that witness being called on her behalf was "economical with the truth".
12. With that brief summary of the factual background, I will refer to the panel's decision on sanction:

"The panel considered this case very carefully and decided to make a striking off order. The effect of this order is that your name will be removed from the NMC register and you will not be able work as a nurse or a midwife or apply for restoration until 5 years after the date that this order takes effect.

In reaching this decision the panel has had regard to all the evidence that has been adduced in this case. The panel took account of the submissions made by Mr Zeiltin and those made by Mr Akinoshun and accepted the advice of the legal assessor. The panel bore in mind that any sanction imposed must be reasonable, appropriate and proportionate, and although not intended to be punitive in its effect, it may have such consequences. The panel had careful regard to the Indicative Sanctions Guidance published by the NMC. It recognised that the decision on sanction is a matter for the panel exercising its own independent judgement.

The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of the case, the nature of the misconduct and the repeated dishonesty over a prolonged period of time. Further the panel considered that it would not be in the public interest to impose no sanction in this case.

Next, in considering whether a caution order would be appropriate in the circumstances, the panel took into account the Indicative Sanctions Guidance, which states that a caution order may be appropriate where 'the case is at the lower end of the spectrum of impaired fitness to practise and the panel wishes to mark that the behaviour was unacceptable and must not happen again.' Given the seriousness of the misconduct found, the prolonged course of dishonest conduct, your lack of insight and the risk of repetition, the panel determined that a caution order would not be appropriate, would not protect the public and would not address the public interest in this case.

The panel next considered whether placing conditions of practice on your registration would be a sufficient and appropriate response. The panel was mindful that any conditions imposed must be proportionate, measurable and workable. The panel took into account the Indicative Sanctions Guidance, in particular;

67 This sanction may be appropriate when some or all of the following factors are apparent (this list is not exhaustive):

67.1 No evidence of harmful deep-seated personality or attitudinal problems

67.2 Identifiable areas of nurse or midwife's practice in need of assessment and/or retraining

67.4 Potential and willingness to respond positively to retraining

67.8 It is possible to formulate conditions and to make provision as to how conditions will be monitored

The panel was of the view that given the specific circumstances of this case conditions of practice would not be an appropriate sanction. The panel had already determined that you lack insight. The panel acknowledge that your clinical practice had not been called into question and any deficiencies that had previously been identified in your competency had been addressed through your supervised practice in 2009/2010. The panel was of the view that there are no conditions that could address the dishonesty that was fundamental to this case and there were no conditions that could be put in place that would address the attitudinal problems that this panel consider that you have displayed through your continuing dishonesty. The panel further considered that there were no conditions that could be effectively monitored to ensure that your dishonesty was not repeated.

Further, the panel considered that conditions of practice would not address the public interest in this case and would undermine the public's confidence in the profession and the NMC as its regulator.

The panel then went on to consider whether a suspension order would be an appropriate sanction. Paragraph 71 indicates that a suspension order would be appropriate where (but not limited to);

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

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

71.3 No evidence of harmful deep-seated personality or attitudinal problems.

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

The aggravating factors that the panel took into account in particular are; the lack of insight into the potential repercussions raising the issue of repetition, and the lack of evidence as to any real remediation. The misconduct in this case was not isolated; it was a course of conduct over a considerable period of time involving more than one employer. Further the panel considered that your dishonest conduct was repeated during the course of this hearing. By way of example this was evidenced when you called your own witness, Ms 10, to give character evidence on your behalf. It was submitted that Ms 10 had been made fully aware of the NMC hearing prior to preparing her reference. However, when giving live evidence before the panel Ms 10 confirmed that she had not been made aware of the extent of the NMC proceedings and you then sought to undermine her evidence by submitting to the panel that she was 'economical with the truth'.

The mitigating factors that the panel took into consideration were: your high standard of clinical care, your previous good history and the hardship that you would face should the panel impose a sanction that would prevent you from working as a nurse or midwife. You told the panel that you were sorry for your actions and that you would not do it again.

The panel was not satisfied that you had any real insight and it was of the view that given everything that it had heard from you, there is a real risk of you repeating the behaviour should you find yourself in a similar situation.

The panel considered that your repeated dishonesty, including throughout the NMC proceedings, was a serious and significant departure from the standards expected of a registered midwife. The panel had regard to the Indicative Sanctions Guidance regarding the public interest and noted that the public interest may include the safe return to practise of a nurse or midwife. However, this must be balanced against other public interest considerations. In the case of Giele v General Medical Council, as referred to by Mr Akinoshun, Mr Justice Collins said:

'It must be obvious that misconduct which is so serious that nothing less than erasure would be considered appropriate cannot attract a lesser sanction simply because the practitioner is particularly skilful. But if erasure is not necessarily required, the skills of the practitioner are a relevant factor.'

The panel finds that although you may be a skilled practitioner, in the circumstances of this case that is not a relevant factor in this case. Balancing all of these factors, the panel has determined that a suspension order would not be an appropriate or proportionate sanction.

Finally, in looking at 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 out in key standards, guidance and advice.

75.6 Dishonesty, especially where persistent or covered up.

75.7 Persistent lack of insight into seriousness of actions or consequences.

The panel considered that your actions were very significant and serious departures from the standards expected of a registered nurse or midwife, and are fundamentally incompatible with you remaining on the register. The panel was of the view that the findings in this particular case demonstrate that, despite the extensive support that you had been given, you undermined the trust that your colleagues had in you by continuing with your course of dishonesty. The dishonesty in this case was not isolated, either in time or circumstance. The dishonesty took place over a four-year period, over two different Trusts and involved a number of instances, including that you had resigned from your post at the Homerton when you were in fact dismissed, that you undertook 22 shifts through an agency when you were prevented from doing so and that you falsely represented the true nature of the ongoing NMC proceedings on more than one occasion. To allow you to continue practising would undermine public confidence in the profession and in the NMC as a regulatory body.

The panel had regard to the case of Fuyane v Nursing and Midwifery Council [2012] EWHC 3229 (Admin) (18 October 2012). It noted that in this case the registrant demonstrated real remorse and regret for her actions. The panel took the view that you demonstrated a lack of understanding and genuine remorse into the seriousness of your dishonesty. You continued to place the blame on others. You did not accept that what you had done was dishonest, and criticised others for not seeking more information to ascertain the extent of your misconduct.

Balancing all of these factors and after having taken into account all the evidence before it during this case, the panel determined that the appropriate and proportionate sanction is that of a Striking-Off Order. Having regard to the matters it identified, the panel has concluded that nothing short of this would be sufficient in this case.

The panel considered the financial impact that such an order may have, as detailed by Mr Akinoshun, however it determined that the public interest outweighed your interests in this regard.

The panel considered that this order was necessary both to protect patients and to mark the importance of maintaining public confidence in the profession and the NMC as a regulator, and to send to the public and the profession a clear message about the standard of behaviour required of a registered nurse or midwife."

13. It is apparent from that detailed reasoning set out in the above passage that the panel approached its task as it is advised to do so by the Indicative Sanctions Guidance, starting with the lowest form of sanction and seeing whether anything less than striking off could do. It is equally apparent that the Indicative Sanctions indicate that the striking off sanction is appropriate where: (1) serious departure from the relevant professional standards is set out and the Key Standards Guidance and Advice; (2) dishonesty, especially where persistent or covered up; (3) persistent lack of insight into the seriousness of actions or consequences. The panel's reasons found that to some extent all three of those factors were present in this case.
14. Guidance to midwives emphasises the importance of keeping an employer informed of all relevant practice such as being subjected to supervised practice and disciplinary proceedings. They had found that the conduct involved dishonesty not only in acting in breach of what she had been told at the meeting on 31 October 2008 by going to work as an agency nurse the next day and for the rest of the month of November and into December and equally misleading Lewisham as to what her problems were with Homerton Hospital and the NMC.
15. Thirdly, (sic) by reason of the very way in which she conducted her defence to these charges, her denial of the conduct, blaming others and asserting that Lewisham must have known by independent means what the true position was, she was showing a persistent lack of insight into the seriousness of actions or consequences.
16. In this appeal the appellant appears in person. The appellant had lodged a full, detailed and certainly well argued skeleton argument on 10 October setting out her contentions as to why the panel reached an unlawful conclusion - because it was a disproportionate conclusion. At the hearing this afternoon before me she has been assisted by Miss Hyatt (a McKenzie Friend) who asked for the privilege of addressing the court as an exception to the normal rule for McKenzie Friends. In the circumstances of her expressing the fact that she had some lay knowledge but however was not a professional McKenzie adviser but a friend of the appellant, the court heard her. I am grateful to Miss Hyatt for the clear, concise and comprehensive submissions. The appellant was satisfied with the way in which her case was presented on her behalf by Miss Hyatt, and I have no doubt and understand fully the way her case is put.
17. Essentially, it is submitted that the following factors cumulatively amounted to factors which should have led the panel to the view that the exceptional course of not striking off for a finding of dishonesty should follow: first, the appellant was accepted to be - certainly by the time of the panel hearing in 2013 and earlier than the proceedings, two or three years - a good clinician notwithstanding whatever it was that led to the decision that her practice should be supervised in October 2008; secondly, it was submitted that there was no other evidence of disciplinary history; thirdly, there had been some degree of disclosure to Lewisham that she had had a small problem with the NMC that resulted in the charge of misleading the interview panel over her employ (?) and being dismissed; fourth, she had promptly admitted that she had worked as an agency nurse in November and December; fifth, by comparison with other cases of dishonesty, this was not dishonesty in falsifying clinical records which would have prejudiced the welfare and health of patients but simply to do with her revelation about her employment history.
18. Those were the key elements of the submission that cumulatively those matters should have led to a lesser sanction.
19. Mr Hogman, who appears for the respondent NMC, also filed a detailed skeleton argument supported by succinct oral submissions to the effect that the panel were entitled to conclude (1) that this was a persistent course of dishonesty; (2) the danger to the public that was contemplated by the panel was not so much clinical inefficiency or [in]effectiveness as the dangers of keeping on the Register someone who had been persistently dishonest with her employers, the agency or Lewisham Hospital; (3) that the way in which the case was conducted - and, indeed, it is suggested, even the way in which the facts were summarised in the skeleton argument for this appeal - suggested a lack of insight into the nature of the conduct and minimising behaviour; (4) although it does not follow that just because the registrant disputes the charges that she showed no remorse or she had shown no insight, in this particular case she was accusing others of being responsible for why things occurred (?) in a certain way. That conclusion was open to the panel who had heard all the evidence.
20. In addition, I am reminded that this court does not lightly interfere with decisions on sanction by relevant tribunals such as the council through its panel who have heard the relevant evidence, whose principal function is to vindicate its reputation and public confidence in the profession generally rather than giving undue weight to the personal mitigating factors of people who have been found to have had their fitness impaired by reason of misconduct findings made against them. That is not to say that this court cannot intervene. The appellant and Miss Hyatt together identified a number of cases and even, where dishonesty has been found, particularly cases the court has been able to indicate that striking off was excessive and disproportionate for particular reasons. Each case turns on its own facts and rarely can a decision in one case give much by way of guidance to another.
21. I have carefully reviewed all the material, the appellant's focussed criticisms of the decision and her submissions that something less could have resulted. But the test that I must address is whether this decision went beyond the reasonable range legitimately open to the panel in the light of the primary findings and the extensive reasoning given (quoted earlier in this judgment).
22. I conclude that the factors that the panel identified were fully open to them to reach on the evidence, if they accepted it. They were material to the question of sanction and the panel were entitled to conclude that all three factors indicating that striking off was appropriate were present in this case, that in particular it is a course of persistent rather than a single incident of dishonesty and a lack of insight into the seriousness of that course of conduct of dishonesty. The panel were particularly well placed to evaluate that last criterion having heard the appellant give evidence, and that is an advantage which this court does not share. But certainly it is a factor, and it is apparent the only way in which the case (Inaudible) did not have to grapple with the importance of the need to employ (?) everything that was happening before the NMC so that the employer can make its own mind up as to the seriousness of those proceedings.
23. In those circumstances, notwithstanding the competent submissions Miss Hyatt has made, this appeal must be dismissed.
24. MR HOGMAN: There is the matter of costs that arises. A statement of costs was sent to the court.
25. MR JUSTICE BLAKE: I have seen this. I am a little alarmed at the quantum. Although you have been very helpful to me, I suspect that this was a succinct response which is appropriate in these cases. I am conscious that these appeals do not go through a filter stage. So the first time the appellant finds out whether her submissions are good, bad or indifferent is when the judge gives the ruling which Mrs Osammor has just heard.
26. MR HOGMAN: Quite so.
27. MR JUSTICE BLAKE: Which goes against the way this court ordinarily makes up assessments against judicial review applications. Nevertheless, the principle must follow. You are entitled to your costs, but I was minded to reduce them to a total of £3,000 plus VAT - whatever that comes to. Do you want to think about that?
28. MR HOGMAN: I will.
29. MR JUSTICE BLAKE: Sadly, litigation is a bit of an expensive business. In principle, someone who successfully defends a decision is entitled to their costs. Do you have the schedule of costs? Have you had this?
30. THE APPELLANT: Yes.
31. MR JUSTICE BLAKE: As you may have gathered, I am proposing not to make you pay £8,124. Calculating VAT on the hoof is not my strong point. But there is something in the order of 3 to £3,500 is the amount I am thinking of. You have an opportunity to say anything you wish to. The question of enforcement is another issue altogether. Do you want to say anything?
32. McKENZIE FRIEND: Yes.
33. MR JUSTICE BLAKE: Yes. What would you like to say?
34. McKENZIE FRIEND: In terms of equity, costs would not be ideal in this case; first, because the appeal was neither frivolous nor vexatious. The appellant had a genuine belief that she had a case to be heard.
35. MR JUSTICE BLAKE: Yes. I am prepared to accept it was not a frivolous appeal.
36. McKENZIE FRIEND: I am grateful.
37. MR JUSTICE BLAKE: There was something worth looking at but it is quite a high threshold. The test is not - in the White Book - whether the appeal was frivolous.
38. McKENZIE FRIEND: Yes. In relation to actually paying costs, the appellant, since the strike-off order, has been lucky per se to get a job as a healthcare assistant. She only started this in January. To date, she has not been paid and only received very very few shifts. She has a child who is aged 13.
39. MR JUSTICE BLAKE: I can well imagine this is not going to be helpful to her family budget. The question is if the appellant is able to explain all this to the NMC it may be that enforcement is another issue. Rather than you telling me all this today, it is not that I am unsympathetic - anyone who has lost a job, and these are not easy times - but sadly there are costs involved in responding to the appeal. The basic rule in the UK - England and Wales at least, I do not speak for Scotland - is the loser pays. I can cut it down a bit.
40. McKENZIE FRIEND: I am grateful.
41. MR JUSTICE BLAKE: I will say £3,000 plus VAT.
42. MR HOGMAN: I would not seek to argue.
43. MR JUSTICE BLAKE: Can you tell us what that sum amounts to?
44. MR HOGMAN: If my maths is good, VAT at 20 per cent would be £600, so £3,600.
45. MR JUSTICE BLAKE: It looks like it is £3,600.
46. MR HOGMAN: I can say this. If the appellant were to make some written representations to the NMC about her circumstances, I am sure they would be considered very very carefully indeed.
47. MR JUSTICE BLAKE: Did you hear that?
48. McKENZIE FRIEND: Yes.
49. MR JUSTICE BLAKE: Make sure they are fully accurate and reflect the whole picture, particularly given the context of these proceedings.