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
		8 July 2015

1. MR JUSTICE HOLMAN: Miss Doris Ngozi Enemuwe is a registered midwife. This is her statutory appeal from a decision of a Conduct and Competence Committee of the Nursing and Midwifery Council made on 15 January 2015 after a hearing that lasted several days. The Committee found certain allegations proved. They found that her fitness to practise was impaired and they ordered the sanction of a caution order for 12 months.
2. By this appeal, Ms Jacqueline Lule, who appears on behalf of the Appellant, challenges, first, the reliability of the findings of fact; second, the consequential conclusion that the fitness of the Appellant to practise was impaired; and third, the sanction of a caution. In relation to sanction, she submits that, on the facts and in the circumstances of this case, the Committee should have decided to make no order.
3. As I have, in fact, already announced at the end of the argument, I feel driven to allowing this appeal and quashing the findings that certain charges were proved. That necessarily means that the consequential finding that the Appellant's fitness to practise is impaired must fall away and also, obviously, the sanction.
4. Accordingly, I have not heard any argument from either Ms Lule or Miss Nancy Marsh, who appears on behalf of the Nursing and Midwifery Council, in relation either to the finding that the Appellant's fitness to practise is impaired or the sanction of a caution. In this judgment I will say nothing more at all with regard to either fitness to practise or the sanction.
5. The essential factual context of this appeal is that on 14 September 2012 the Appellant was working as an agency midwife at St Thomas' Hospital in London. There she was attending upon the labour and subsequent giving of birth by a patient who is known in these proceedings as Patient A. With one exception, all the charges considered by the NMC related to the behaviour or performance of the Appellant during the period when she was present and assisting with the birth.
6. Later, Patient A and her husband, who had been present at the birth, made a range of complaints about the behaviour and performance of the Appellant. These complaints led, first, to a supervisory investigation by a supervisor of midwives (SOM) appointed to the London Local Supervising Authority. The investigator was a senior and very experienced midwife known in these proceedings as Ms 2. Ms 2 produced a supervisory investigation report dated 26 April 2013 which extends to 31 pages. I will call the investigation by Ms 2 the "SOM investigation" and her report the "SOM report".
7. At some stage during, or subsequent to, the SOM investigation, this matter was further referred to the Nursing and Midwifery Council and, ultimately, the Conduct and Competence Committee hearing ensued. It began in mid November 2014 and culminated, as I have said, on 15 January 2015.
8. The essence of the complaints made by Patient A and her husband are really encapsulated in the subsequent charges that were formulated by the NMC. If I simply read out those charges, that essentially sets the factual scene for the purposes of this judgment.
9. The Appellant was charged that, being a registered midwife, you:

i. "(1) On 14 September 2012 whilst providing care to Patient A:

(b) Were abrupt and rude in that you:

(i) Failed to introduce yourself as a midwife;

i. (ii) Said to Patient A and/or Patient A's husband words to the effect of "you don't know what you're talking about" and/or "what do you want now";

ii. (iii) Rolled your eyes when Patient A asked you for advice.

(c) Were unnecessarily rough with Patient A in that you:

(i) Pressed her stomach on one or more occasions whilst she was having contractions;

i. (ii) Roughly adjusted the TOCO transducer;

ii. (iii) Pulled away the placenta with force.

(d) Used your mobile phone on one or more occasion(s).

(e) Cut the umbilical cord without consulting Patient A and/or Patient A's husband when they had requested the option.

(f) Failed to gain consent from Patient A before administering a Syntometrine injection.

(g) Piled blood-soaked cotton swabs on Patient A's stomach and/or chest.

(h) Failed to effectively communicate and/or escalate Patient A's postpartum haemorrhage in a timely manner..."

10. Pausing there, all those charges and matters of complaint clearly related to the actual period of the labour, the birth and the immediate postpartum period.
11. The charges are frankly self explanatory, and it is only necessary to add by way of context the following. As elaborated in evidence at the hearing before the Committee, the gravamen of charge (1)(c), namely using the mobile phone, was that during the period of the labour, the Appellant was holding and using her own mobile phone in order to make or receive a personal call or calls between, as it was put, the legs of Patient A as she lay there in labour.
12. The context of charge (1)(d) is that apparently nowadays many mothers or their husbands or partners like themselves to cut the umbilical cord and Patient A and/or her husband had previously requested to do so. Accordingly, by cutting the umbilical cord herself the Appellant was denying them that right and overriding their request.
13. The last charge, namely charge (2), was that:

i. "Between approximately 17 December 2012 and 7 February 2013 you stored copies of Patient A's records in your own home."

14. The context and circumstances of that charge were that after the SOM investigation got under way, the Appellant asked to see, and was given photocopies of, the records surrounding the birth of the baby. The Appellant subsequently told Ms 2 that she had taken those copied records to her own home, which was said to breach the confidentiality policy of the Guy's and St Thomas' NHS Foundation Trust.
15. So those were the charges that the Appellant faced before the Conduct and Competence Committee of the NMC.
16. During the course of the hearing the Committee heard oral evidence from six witnesses plus the Appellant herself. Those witnesses were Patient A and Patient A's husband; Dr 1, who at the material time was a student doctor who witnessed the birth; Ms 2, namely the supervisor of midwives who conducted the SOM investigation; and two other midwives who had been present at certain stages during the labour or birth, known during the hearing as Ms 3 and Ms 4.
17. After hearing the primary evidence against the Appellant, the Committee ruled that there was no case to answer on the following charges, namely (1)(b)(i), (ii) and (iii), (1)(d) and (1)(g). Charge (2) with regard to the Appellant storing copies of records in her own home was admitted and accordingly found proved.
18. The Committee then heard the evidence of the Appellant and the submissions of the advocates on the remaining charges. Of these, they found a number not proved, namely charges (1)(a)(i) and (1)(a)(iii) and (1)(e) and (1)(f).
19. They found proved charges (1)(a)(ii), namely that the Appellant had been abrupt and rude in that she used words to the effect of "you don't know what you're talking about" and/or "what do you want now", and charge (1)(c), namely that the Appellant used her mobile phone on one or more occasions. It is those findings and decisions upon charges (1)(a)(ii) and (1)(c) that are now challenged by this appeal.
20. By her "Submissions/grounds of appeal in support of the appellant's notice" dated 17 February 2015, Ms Lule raises three principle grounds of challenge against the findings. The first relates to what she calls "the panel's reliance on the outcome of the SOM investigation". The second relates to what she calls "the panel's reliance on the evidence of Dr 1". The third relates to what she calls "inconsistencies between the witnesses in respect of the charges proved".
21. The gist of that third ground or submission is self-evident and involves the proposition that there were inconsistencies between the accounts of the witnesses, to which the Committee failed to give sufficient weight.
22. The gist of the second ground or submission is that Dr 1 only made her statement about 11 months after the incident and after having apparently first seen all or some of the statements of the other witnesses. So the gist of the argument would have been that the evidence of Dr 1 was potentially tainted and unreliable and should not have been relied upon.
23. However, I wish to stress that I have not heard the oral submissions of either Ms Lule or Miss Marsh in relation to either of those submissions or grounds of appeal, for the focus of the hearing today has been on the complaint about "the panel's reliance on the outcome of the SOM investigation". I have decided that I am driven to allow this appeal on the basis of that complaint or ground and so it has not been necessary (nor has there been time available) for me to consider the other grounds. In short, this judgment and my reason for allowing the appeal is focused and based on a single ground.
24. In order to put that ground into its correct legal context, I refer first to CPR rule 52.11(3) which provides as follows:

i. "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."

25. Although this is not an appeal from a lower court as such, I have been assured by each of Ms Lule and Miss Marsh that that rule applies and is in point at the hearing of this appeal.
26. I wish to make crystal clear at the outset that it is not my view that the decision of the Committee was necessarily "wrong". Indeed, I do not have any view or position as to whether it was right or wrong. My decision in this case is based upon sub-paragraph (b) and my view that there was a "serious irregularity" in the proceedings before the Committee for reasons which I will shortly describe.
27. The other relevant legal context is rule 31 of the Nursing and Midwifery Council Rules 2004 which provides as follows:

i. "31. (1) Upon receiving the advice of the legal assessor, and subject only to the requirements of relevance and fairness, a Practice Committee considering an allegation may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil proceedings (in the appropriate Court in that part of the United Kingdom in which the hearing takes place)."

28. The Committee and their legal assessor in the present case were undoubtedly very aware and mindful of that rule, since it was referred to, and quoted by, the legal assessor during the course of the second day of the hearing on 18 November 2014 at internal page 59 of the verbatim transcript of that day and now bundle page 139.
29. Clearly, one effect of that rule is to enlarge the scope of oral, documentary or other evidence which a Committee can admit even when such evidence would not be admissible in ordinary civil proceedings. But another effect of the rule is clearly to incorporate and emphasise the "requirements" of both relevance and fairness. Those are "requirements", and accordingly, as it seems to me, one effect of the rule is that the Committee should not admit evidence which is not relevant or which it would be unfair to admit.
30. The thrust of Ms Lule's point and argument is upon some weight or reliance which apparently was, or may have been, attached by the Committee to the outcome of the SOM investigation, if not the actual report itself.
31. At this hearing today, there is an area of considerable difficulty. Ms Lule did not appear on behalf of the Appellant at the hearing before the Committee. The Appellant was represented at that hearing by another barrister called Mr Ben Rich. Miss Nancy Marsh, who appears on behalf of the NMC today, did not appear as the case presenter at the hearing and, as I understand it, had no involvement in this case during or in the period of the hearing. As a result, there has been considerable confusion today as to what documents were actually supplied to the Committee.
32. Ms Lule has shown to me in its unredacted form the 31 page supervisory investigation report by Ms 2 dated 26 April 2013. I wish to stress very clearly that I have not in any way whatsoever read that report. I have merely eyeballed it to get a sense of its appearance and degree of detail.
33. Miss Marsh says that she does not think that that report in its unredacted form would have been placed before the Committee at any stage, and I accept that. Miss Marsh anticipates that some agreed redacted version of that report may have been placed before the Committee. But if that is so, and despite inquiries today of the office of the NMC (which is very close to the Royal Courts of Justice), and despite a large quantity of documents being produced at short notice today, there is nothing which has the appearance of being a redacted version of the supervisory investigation report itself.
34. As I have already mentioned, one of the charges in this case related to cutting the umbilical cord without giving Patient A and/or her husband the opportunity of doing so. Ms 2 made a statement in these proceedings in which, amongst other matters, she expressed views about the modern practice and appropriateness of permitting a mother or her partner to do that.
35. Mr Ben Rich, who was appearing on behalf of the Appellant, objected to the Committee receiving or hearing that part of the evidence of Ms 2. The essence of his objection was that as Ms 2 had been the investigating officer, it was not appropriate that she should become involved at the hearing before the NMC as an expert or quasi expert witness giving opinion evidence of that kind.
36. In the event, after hearing submissions from Mr Rich and from the case presenter, the Committee ruled that they would not hear or receive that part of the evidence of Ms 2.
37. But in the course of Mr Rich's submissions on this point, there is a significant passage at internal page 57 of the transcript of the hearing on 18 November 2014, now at bundle page 137. He said as follows:

i. "Sir, I will keep it extremely brief. The thing that is in issue here is whether [Ms 2] is a proper person in these proceedings to give opinion evidence against the registrant on the basis of what her perception of the case is. The key issue is that she was the investigating officer of the Trust who made the findings of fact with relation to these allegations. It is normal practice of course that the findings of fact made effectively by another panel or another person are generally not admissible in these proceedings and are not put before the panel -- as indeed her findings are not put before this particular panel." [my emphasis]

38. In my view, that was an entirely accurate summary by Mr Rich of the position, namely that in this sort of situation where there has been a prior investigation and prior findings by a local disciplinary or investigatory person or body, the findings of that person or body are not, and should not be, normally admissible in proceedings before the NMC, nor put before the Committee, although Miss Marsh says that the Committee does sometimes receive a redacted version of such a report or findings.
39. Further, the last part of the quotation from Mr Rich clearly contains the proposition that "indeed, her findings are not before this particular panel". So it would seem from that passage that it was certainly the understanding of Mr Rich at that stage, with which neither the Chairman of the panel nor the case presenter in any way demurred, that the findings of Ms 2 had not been put, and would not be put, before the panel.
40. Against that background, I now turn to the actual findings of the panel which were announced orally at the hearing on 13 January 2015, but are also contained in a decision letter dated 20 January 2015 from which I will actually quote.
41. On page 5 of the decision letter, the panel listed the witnesses from whom they had heard oral evidence, as I have already described, and that included "Ms 2, supervisor of midwives who conducted the Trust's investigation".
42. At the bottom of page 6, whilst describing the chronology, the Committee described how a complaint to the Patient Advice and Liaison Service at the hospital "was escalated to the SOM and on 2 January 2013, an investigation began, conducted by SOM Ms 2".
43. The Committee then described on page 7 how Ms 2 had investigated the allegations and "interviewed you, Patient A and Mr A and all those involved in Patient A's care on 14 September 2012..."
44. The Committee then went on over several pages to describe those charges upon which they had found there was no case to answer and, briefly, their reasons.
45. At page 11 the Committee referred to an issue as to whether Ms 2 should have been recalled to give further evidence, because after she had given her oral evidence she sent an e-mail saying that she was concerned about the accuracy of some of it. It is not really necessary to make more detailed reference to that aspect of the case, except to note that when dealing with that on internal page 11 of their decision letter, the Committee said:

i. "The panel has considered whether the interests of justice and fairness require that Ms 2 should be recalled to give further evidence at the hearing. The panel is mindful that the content of the report [viz the supervisory investigation report] will potentially be relevant." [my emphasis]

46. I emphasise and stress the second sentence in that quotation, for there the Committee are expressly stating that, in their view, the content of the supervisory investigation report "will potentially be relevant".
47. The Committee then continued in the decision letter to record their findings on the facts that remained in dispute and the subject of contested charges, and their reasons for the findings.
48. At internal page 12 of the decision letter, they make comments about the reliability of the various witnesses. They say, importantly, that they:

i. "took the view that the respective recollections of Patient A and Mr A were not entirely reliable in light of the emotionally charged circumstances and the distress and fatigue they were experiencing at the material time."

49. In relation to Dr 1, they said:

i. "Mr Rich submitted that the evidence of Dr 1 could not be relied upon because she was told what the complaints about you were and that she did not complete a witness statement until 9 months after the incidents occurred. The panel was of the view that Dr 1 attempted to assist the panel and she was open and honest about details that she could not remember. The panel considers that her evidence was not tainted, but obviously she was recalling events from some time ago."

50. The Committee stated in relation to the midwives Ms 3 and Ms 4 that they were credible witnesses who had attempted to assist the panel where they could.
51. The Committee also recorded at the top of page 13 that:

i. "Finally, the panel found your evidence [viz that of the Appellant] was professional, clear and consistent, albeit at odds in many respects from the other witnesses."

52. The Committee had also said in relation to Ms 2 the following, upon which Miss Marsh appropriately places stress and reliance:

i. "The panel accepted that Ms 2 was an experienced midwife and SOM. The panel was also of the view that Ms 2's evidence was helpful, but came from a particular perspective as she was the person responsible for gathering the evidence for the internal investigation. The panel bore in mind that Ms 2 was not present at any time during the delivery of Patient A's baby and did not actually witness any of the alleged incidents."

53. After that summary of the impression that they had formed of the various witnesses, the Committee proceeded to record their findings and reasons in relation to each of the remaining charges in the order in which they were charged. So, on page 13, they first explained why they found charge (1)(a)(i) not proved to the required standard of the balance of probability.
54. The Committee then record that had they found charge (1)(a)(ii) proved, namely being abrupt and rude by using some such words as "you don't know what you're talking about". In the course of their reasons for finding charge (1)(a)(ii) proved, the Committee say the following:

i. "The outcome of the SOM investigation was that all the allegations against you were upheld, including the allegation that you spoke abruptly and/or rudely to Patient A and Mr A. Ms 2 confirmed this to the panel."

55. Pausing there, it is frankly obscure at this hearing today how the Committee even knew that that was the outcome of the SOM investigation, since, as I have said, it is very unclear here today in what form they received the supervisory investigation report. Further, as Mr Rich had said in a passage I have already quoted, "Her findings are not put before this particular panel".
56. Further, the Committee state in the last sentence that I have just quoted, "Ms 2 confirmed this to the panel". Today, Ms Lule, Miss Marsh and I have scrutinised with considerable care the verbatim transcript of the oral evidence of Ms 2, and nowhere can we find any answer which even obliquely involves "confirming" to the Committee or panel the outcome of her investigation, or the fact that she upheld all the allegations.
57. Immediately after that quotation in relation to the outcome of the SOM investigation, the reasons continue as follows:

i. "You denied that you said words to the effect of "you don't know what you're talking about" and/or "what do you want now" to Patient A and Mr A. In light of the accounts of Patient A, Mr A, Dr 1 and Ms 4, the panel is of the view that it is more likely than not that you said words to the effect of "you don't know what you're talking about" and/or "what do you want now" to Patient A and Mr A. The panel therefore finds this charge proved."

58. That is the end of that part of their decision letter and reasoning which deals with that particular charge.
59. Appropriately and understandably, Miss Marsh emphasises that in the penultimate sentence of that quotation the panel are careful and clear expressly to refer to the accounts of Patient A, Mr A, Dr 1 and Ms 4. They do not make any reference there to the account or evidence of Ms 2.
60. On the other hand, that sentence and the conclusion that therefore the panel find the charge proved is itself separated by only one sentence (namely the denial of the Appellant) from the passage and sentence in which they expressly refer to the outcome of the SOM investigation.
61. It seems to me, with respect to the submission of Miss Marsh, that the whole passage and reasons in relation to this charge need to be read as a whole. For whatever reason, the two sentences dealing with the outcome of the SOM investigation and the proposition that all the allegations were upheld, and the proposition that Ms 2 confirmed that to the panel, are apparently an integral part of the reasoning.
62. The panel then proceeded to explain briefly why they found charge (1)(a)(iii) not proved and then turned on internal page 14 to charge (1)(c), namely the use of the mobile phone. Here they briefly summarise the evidence of Patient A and Mr A and the evidence of Dr 1. They then say, mirroring what they had said in relation to the earlier charge:

i. "The outcome of the SOM investigation was that all the allegations against you were upheld, including the allegation that you inappropriately used your mobile phone whilst providing clinical care. Ms 2 confirmed this to the panel."

63. Again, there is the same mystery as to how it was that the Committee knew the outcome of the SOM investigation, and the same mystery that nowhere in the verbatim transcript of her oral evidence does Ms 2 appear to have "confirmed this to the panel".
64. The Committee then refer briefly to the oral evidence on this allegation of the midwives Ms 4 and Ms 3 and then said:

i. "You denied that you used your mobile phone at all. This is contradicted by the evidence from all of the direct witnesses. You told the panel that your mobile phone was not switched on while you were caring for Patient A."

65. The Committee continued:

i. "The panel noted the weight of the evidence and preferred the testimony of Patient A, Mr A, Dr 1, Ms 4 and Ms 3. The panel is satisfied that it is more likely than not that you used your mobile phone while providing care for Patient A. Therefore, the panel finds this charge proved on the balance of probabilities."

66. That concludes their decision and reasoning on that charge.
67. Again, Miss Marsh, understandably and appropriately, stresses that in the passage at the end of that section the Committee refer to the weight of the evidence of Patient A, Mr A, Dr 1, Ms 4 and Ms 3 and make no reference to the evidence of Ms 2.
68. But again, it seems to me that the reasoning in relation to this charge, which in total occupies about half a page, must necessarily be read as a whole. Apparently an integral part of the reasoning are the references which I have quoted to the outcome of the SOM investigation that the allegations were upheld and that apparently Ms 2 had confirmed that to the panel.
69. The Committee then proceeded to describe why they did not find the remaining charges, (1)(e) and (1)(f), proved, and that they did find charge (2) proved by way of admission.
70. Miss Marsh has drawn my attention to the recent decision and authority of Ouseley J in The Queen (on the application of Squier) v General Medical Council [2015] EWHC 299 (Admin). In that case, Ouseley J. had to consider a judicial review of a preliminary decision of the fitness to practise panel of the Medical Practitioners Tribunal Service of the General Medical Council, to admit into evidence at the prospective substantive hearing of charges against a registered doctor redacted versions of certain judgments by judges of the High Court.
71. The essential factual context was that in the course of care or similar proceedings which were investigating the circumstances of the deaths of various children, judges had made comments critical of expert evidence given in the relevant proceedings by the registered doctor, namely Dr Squier. It was submitted on her behalf that those judgments should not be placed before the actual fitness to practise panel at the substantive hearings because they were not relevant and were potentially highly prejudicial.
72. After a careful review of all the relevant authorities, Ouseley J said at paragraph 39 of his judgment:

i. "In the light of those authorities, the FTPP did not act unreasonably in concluding that the judgments would be relevant in providing an insight into the background to the cases and the forensic context in which Dr Squier prepared and gave her evidence, and in providing prima facie evidence of facts about the circumstances of the deaths, the post-mortems, what the parents said, and the medical issues faced at trials to which Dr Squier's evidence was relevant..."

73. At paragraph 40, Ouseley J said:

i. "The FTPP did not decide that the judgments were to be admitted to prove the cause of death; that is not an issue for the FTPP. They are not relevant to prove that Dr Squier's evidence was not accepted or was found to be lacking in certain qualities. The issue before the FTPP is not whether Dr Squier was right or wrong which was the issue before the judges, but concerns the basis upon which she gave her evidence, its scope and her use of the underlying research papers. That is the crucial issue for the FTPP. The actual outcome of the trials, and any finding in or inferred from the redacted judgments that Dr Squier's evidence was rejected, is not relevant to these allegations of misconduct..."

74. It seems to me that the circumstances and forensic context with which Ouseley J was concerned, and in which prospectively the FTPP of the General Medical Council will look, or may look, at redacted versions of the judgments, is analytically different from what is in point and issue in the present case.
75. In that case, the essential task of the judges had been to decide what the facts were in relation to the deaths of the children. That was completely different from the essential task prospectively of the FTPP, which is to consider allegations with regard to the professionalism of Dr Squier as a person giving expert evidence.
76. In the present case, however, the supervisory investigation report of Ms 2 and the role and task of the Committee at the fact-finding stage of their hearing was in fact identical, namely to decide whether or not the Appellant had said or done the various things alleged against her.
77. I perfectly appreciate that the background to many, if not all, investigations, and ultimately hearings, by Conduct and Competence Committees of the NMC is likely to include some complaint or allegation and some disciplinary or other investigation at the local level. Often a registrant may have been suspended or dismissed, and the Committee will need to be informed, and will be informed, of that fact.
78. But there is a world of difference between their knowing that there has been some investigation, and their actually paying regard to the factual outcome of the investigation in reaching their own findings and conclusions on disputed issues of fact.
79. At the risk of repetition, it is my view that the position was correctly summarised by Mr Rich in a passage I have already quoted, namely that normally the findings of fact made at some earlier investigation by another panel or another person are not admissible in proceedings before this Committee.
80. As I have said, there is some uncertainty today as to exactly what the Committee had in their possession, and as to the extent of their knowledge or understanding of the conclusions and findings of Ms 2. But they themselves had stated on page 11 of their decision letter, in a sentence which I have already quoted, "The panel is mindful that the content of the report will potentially be relevant". In my view, the content of the report should in fact have been regarded as completely irrelevant.
81. In the passages which I have quoted from pages 13 and 14, the Committee have clearly chosen to make twice repeated reference to the outcome of the SOM investigation when giving their reasons for finding the charges in question proved. It seems to me, therefore, that, in the language of CPR rule 52.11(3)(b), there has been a serious irregularity in this case.
82. Although the Committee clearly conducted this whole hearing with the utmost care, and although they clearly demonstrated a capacity to discriminate between the various charges, some of which were found proved and others not proved, there must be a risk here that in some way they allowed themselves to be influenced, even if only peripherally, by their knowledge that all the allegations had earlier been upheld by Ms 2.
83. What they should in fact have done was decline to admit any evidence by any means of the outcome of the supervisory investigation, and they should have treated the findings and decision of Ms 2 as completely irrelevant and excluded from their consideration by operation of rule 31(1).
84. For these reasons, in an exercise of my power under Article 38(3)(b) of the Nursing and Midwifery Order 2001, SI 2002/252, I allow this appeal and quash the decision appealed against.
85. I have a power under sub-paragraph (c) to substitute any other decision that the Committee could have made, but it would patently be wholly impossible and inappropriate for me to substitute some alternative decision.
86. I also have a power under sub-paragraph (d) to remit the case to the Committee concerned to be disposed of in accordance with the directions of myself. It seems to me that there may be room for a difficult discretionary decision in this case as to whether or not this whole matter and these charges should be reheard and redetermined.
87. On the one hand, the charges include charges of some gravity, in particular making or receiving a call or calls between the legs of a mother as she is in labour. A view may be taken that the public interest requires this matter to be resolved and determined and not left, as it were, in abeyance.
88. On the other hand, a view may be taken that this has already occupied about eight or nine days of hearing time before the Conduct and Competence Committee. Six witnesses plus the Appellant have already given oral evidence. The matter has become relatively stale. The overall gravity may be said to be reflected in the sanction that was imposed of a caution, which is one of the less severe sanctions that might have been imposed.
89. I wish to make crystal clear that I have no personal position whatsoever on the question of whether there should be a rehearing, or whether the matter should now be left to drop or in abeyance. As I have indicated, there are obvious arguments and considerations both ways on that issue, and no doubt a number of other factors which I have not touched upon.
90. The only direction which I give, pursuant to Article 38(3)(d), is that this matter is remitted to the Nursing and Midwifery Council for that Council to review as soon as reasonably practicable and to be disposed of according to the outcome of that review. It seems to me that in this situation it must be the appropriate Committee of the Nursing and Midwifery Council, and not this court, which now decides whether this matter is left to rest or is reheard.
91. The only positive direction which I will make is that if this matter is reheard, then it must not be reheard by the same panel as heard the case before. Patently if there is to be a rehearing, it must be a rehearing by a completely fresh panel who approach it from scratch.
92. MR JUSTICE HOLMAN: Are there any other matters with which I must now deal?
93. MISS MARSH: My Lord, there is one slight point in relation to a comment in the judgment --
94. MR JUSTICE HOLMAN: Yes.
95. MISS MARSH: -- that the quote from Mr Rich during the hearing in relation to the admissibility of outcomes of other investigations that that was not challenged by me. In fact, I would just like to put on record that the NMC do not necessarily accept that submission by counsel and indeed I did raise with the court examples --
96. MR JUSTICE HOLMAN: All right.
97. MISS MARSH: -- of where it would be appropriate.
98. MR JUSTICE HOLMAN: Very well.
99. MISS MARSH: It is not a big point, my Lord.
100. MR JUSTICE HOLMAN: Not a big point. It is 5.30 pm. We have gone on extremely late and I cannot spend more time on this now.
101. Ms Lule: I have an application for costs.
102. MISS MARSH: My Lord, if it assists, I do have a costs schedule. I do not know whether you have received a copy of the costs schedule.
103. MR JUSTICE HOLMAN: Whose costs schedule?
104. MISS MARSH: The Appellant's.
105. MR JUSTICE HOLMAN: I do not think I have, no.
106. MISS MARSH: Shall I hand up my copy and then the court can peruse?
107. MR JUSTICE HOLMAN: I have your costs schedule, but I am afraid that is not going to be the point today.
108. MISS MARSH: No, my Lord. (Handed)
109. MR JUSTICE HOLMAN: Are you going to be resisting their application?
110. MISS MARSH: No, my Lord, neither in principle nor amount.
111. MR JUSTICE HOLMAN: Right. Is your application that the NMC should pay your client's costs of and incidental to the appeal?
112. MS LULE: Yes.
113. MR JUSTICE HOLMAN: Is it in the amount of £1,920 inclusive of VAT?
114. MS LULE: It is.
115. MR JUSTICE HOLMAN: I do not think that is opposed.
116. MISS MARSH: No, my Lord, it is not.
117. MR JUSTICE HOLMAN: Very well.
118. MS LULE: Thank you.
119. MR JUSTICE HOLMAN: Then there can be an additional paragraph to the order that the Nursing and Midwifery Council must pay the Appellant's costs of and incidental to this appeal, summarily assessed in the sum of £1,920 inclusive of VAT.
120. Is there anything else --
121. MS LULE: No. Thank you.
122. MR JUSTICE HOLMAN: -- anybody wishes to raise or say?
123. MISS MARSH: No, my Lord.
124. MR JUSTICE HOLMAN: No. Well, I am sorry to have kept you all day, but we clearly had to finish this today.
125. MS LULE: Thank you very much, my Lord.
126. MR JUSTICE HOLMAN: All right. Thank you all very much indeed.