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
		10 March 2016

1. MR JUSTICE HOLMAN: This is a statutory appeal from the findings and decision of a Conduct and Competence Committee of the Nursing and Midwifery Council ("NMC") in disciplinary proceedings against a registrant nurse.
2. In my now quite considerable experience, disciplinary committees of the NMC, who are very hard pressed, are extremely conscientious and bend over backwards to be fair, not only to the interests of the public, but also to the position and interests of a registrant. Very occasionally things go wrong, and I am afraid that this is one such case. I wish to stress from the very outset that nothing that I say is intended to be critical in any way whatsoever of the members of the panel who dealt with this particular case. But, in my view, for reasons which I will explain, they were lulled or led into making an error which is unfair to the appellant and renders their finding on part of this case unreliable.
3. The essential facts are as follows. The appellant is and was a registered nurse of quite considerable seniority and standing. In November 2012, a student nurse called Nurse A, who was working under his supervision at the hospital at which he was employed, made a complaint against him. The essence of the complaint was that deep in the middle of one night, when they were both on duty together, he touched her inappropriately by touching her breasts and her bottom and rubbing her back. She said also that he tried to kiss her neck.
4. That complaint by Nurse A was the subject of an internal investigation and disciplinary process by the hospital at which the appellant was then working. The conclusion of the senior nurse who conducted the investigation was that the appellant had done what Nurse A complained about and alleged. As a result, his employment at that hospital was terminated and the NMC were formally notified.
5. The appellant became the subject of a formal investigation by the NMC, of which, of course, he was well aware. Meanwhile he applied for employment by another employer in February 2013. As part of the application process for that employment, he was asked, in an application form, "Have you ever been subject to disciplinary action or are currently being investigated due to misconduct?" and he placed a cross in the "No" box alongside the question. That was, of course, untrue, since at that very time he was the subject of investigation and disciplinary proceedings by the hospital by which he had previously been employed.
6. As a result of all these events, the appellant ultimately faced four charges before the Conduct and Competence Committee of the NMC. In summary, charge 1 was that he had touched Nurse A in the ways I have mentioned, and charge 2 was that the actions alleged in charge 1 were sexually motivated. So charges 1 and 2 clearly stood together. Charge 3 was that he had failed to inform the prospective new employers that he was the subject of disciplinary proceedings, and charge 4 was that his failure to do so was dishonest. So charges 3 and 4 also effectively stood together.
7. There was a hearing of altogether five days before the Conduct and Competence Committee at which the principal oral evidence was that of the registrant himself and that of Student Nurse A. During the course of examination-in-chief by his own counsel on the second day of the hearing, there were the following questions and answers, which I read from internal pages 6 and 7 of the transcript of day two and pages 144 and 145 of the present bundle:

"Q. Prior to this allegation [viz the one made by Nurse A] had you ever experienced any problems in maintaining a personal boundary?

A. Not at all.

Q. Had anyone ever made a complaint about you?

A. No.

Q. Had anyone ever seen fit to give you any advice in respect of anything?

A. No.

Q. And that has been the position throughout your working life?

A. Yes, sir."

8. As a result of that short passage, the case presenter (whom I stress was not Ms Grace Hansen who appears on behalf of the NMC before me today) was later to make an application to the panel to adduce further evidence. This application and the submissions and argument in relation to it may be found at internal pages 20 to 27 of the transcript of day two, now bundle pages 158 to 165. The thrust of the application was that when the appellant had said that no-one had ever made a complaint about him, that was not true. Until this point of the hearing the panel had been shown a statement by the senior nurse who had investigated matters at the employing hospital, which had been heavily redacted so as to refer only to the course of her enquiries specifically of Nurse A. The case presenter now invited the panel to look at a new version of that statement from which a number (though not all) of the redactions had been removed. What emerged was, in summary, that during the course of the investigation into the complaint made by Student Nurse A, two other nurses had told the investigating nurse that the appellant had also touched each of them inappropriately on completely different occasions. The way it had come out appears to be that on the night upon which the appellant had allegedly touched Student Nurse A inappropriately, there was another nurse on duty whom I will call B. The investigating nurse had asked B whether she had noticed anything unusual about the behaviour of either the appellant or student Nurse A on the night in question, and Nurse B said she had not.
9. That might indeed have been the end of the involvement of Nurse B except that the investigating officer, somewhat surprisingly, then asked Nurse B: "Would you describe him as touchy feely?" This appears to have resulted in Nurse B going on to give an account that on about three different occasions the appellant had also touched Nurse B inappropriately. She said, "He used to give me a friendly hug but his hands would wander and want to go down to your bottom, or he would pull you in a bit closely and it got to the stage where I had to say, 'Don't touch me' ... He is a very tactile person but being a tactile person he would put his hand on top of yours". The investigating nurse then asked Nurse B whether she was aware of this happening to any other staff apart from herself, and Nurse B said, "I think he tried it with L ... ". Nurse B was then asked whether she had ever considered reporting it and she said, "No, because I dealt with it". She described how she told him that it was inappropriate behaviour and must stop.
10. This appears to have led to the investigating officer also asking questions of Nurse L. Exactly what passed between Nurse L and the investigating officer is, frankly, more obscure, as I will later elaborate more fully. But at all events, it became the understanding of the investigating officer that Nurse L also alleged that on some other quite different occasion the appellant "had asked her for a hug and then proceeded to squeeze her bottom". Neither Nurse B nor Nurse L had ever in fact made any complaint about this behaviour, nor indeed, so far as I am aware, did either of them seek to elevate their accounts into a formal complaint when being asked about these matters by the investigating officer. But the basis of the application of the case presenter at the hearing before the NMC to adduce further evidence was that what Nurse B and Nurse L had said to that investigating officer amounted to "a complaint", so that when he said that no-one had ever made a complaint about him, that was disingenuous if not downright untrue.
11. It is not necessary for the purposes of my decision or this judgment to quote extensively from the passages to which I have referred between internal pages 20 and 27 of the transcript of the hearing. There was no real resistance by Mr Stephen Betts, who appeared then as now on behalf of the appellant, to the panel seeing the less redacted statement of the investigating officer and other material for the purposes of deciding whether or not they should admit it into evidence. That was a process akin to a professional judge at a hearing looking at material on what is quaintly known as a "de bene esse" basis, in order to decide whether or not he should formally admit the material into evidence. But Mr Betts did strongly submit that, having looked at the material, the panel should decide not to admit it into evidence. He said in a passage at internal page 22G, now bundle page 160:

"Sir, the application is opposed on the ground that the admission of such evidence would have such an adverse effect upon the fairness of the proceedings that it ought not to be admitted. There is an overriding duty to secure a fair trial. It is submitted on [the appellant's] behalf that this evidence is of a satellite nature. It is unlikely to be of any probative value. It is at best hearsay and it would be unjust even at this time for it to be admitted ... The interview of two further witnesses [viz Nurses B and L] in relation to evidence which is untested and unchallenged before the tribunal would disrupt the fairness of these proceedings. They are also not relevant to the allegations made by [Nurse A]. [Nurse A's] allegation is of a seriousness that stands alone..."

12. Mr Betts also submitted, in effect, that the question whether or not the appellant had been the subject of a complaint patently related to some formal complaint, and that what Nurse B and Nurse L were to say when asked questions much later did not amount to a "complaint" by them.
13. Nevertheless, the panel, after receiving advice from their legal assessor, decided to admit the material. Their ruling on that decision is at internal page 27 of the transcript of the second day, now bundle page 165. They referred briefly to the basis upon which the case presenter had applied for the evidence to be admitted, namely that during evidence-in-chief a misleading impression had been created. They referred in summary to the submissions of Mr Betts, which I have already quoted. They continued as follows:

"The panel heard and accepted the legal assessor's advice on this issue it should take into consideration in respect of this application. This included that Rule 31 provides that, so far as is it 'fair and relevant', a panel may accept evidence in a range of forms and circumstances.

The panel considered that the proposed evidence is relevant to these proceedings as it relates to alleged behaviour of a similar nature.

In its consideration of whether it is fair to admit the evidence into proceedings, the panel took into account the fact that the proposed evidence is hearsay evidence that has not been tested or challenged and is potentially prejudicial to you. However, the panel was aware that the consideration of fairness is in relation to both you and the NMC. In these circumstances, the panel came to the view that it would be fair and relevant to accept into evidence the previously redacted parts of [the investigating nurse's] witness statement but determined to give what it deemed appropriate weight once the panel had heard and evaluated all the evidence before it."

14. In the middle of that quotation one can see, from the easy vantage point of hindsight, where this all went wrong. The reason why the case presenter had asked the panel to admit this material into evidence was to rebut the appellant's wrong or misleading answer that no-one had ever made a complaint against him. If its purpose as evidence had been confined to that purpose, then its admission might well have remained unobjectionable. He had said that no-one had ever made a complaint against him. This was material tending to show (depending on what one means by the word "complaint") that two other nurses had made complaints about him, if not against him.
15. The problem is that the panel, as that passage shows, slipped into treating the material, not merely as material which rebutted his answer that no-one had ever made a complaint about him, but as material which was itself potentially probative of the underlying charge that he had touched Nurse A in a sexual manner. That clearly emerges from the words of the panel that "The panel considered that the proposed evidence is relevant to these proceedings as it relates to alleged behaviour of a similar nature." In that sentence, the panel leapt in a bound from treating the evidence as merely tending to rebut a false or misleading answer about complaints, to similar fact evidence going to the very heart of the behaviour alleged and charged.
16. The panel decided that all four charges were proved, and their reasons, as well as being announced orally on the last day of the hearing, are set out in a letter dated 14 May 2015 from the NMC to the appellant. Early in that letter they set out again the ruling which they had made as to admitting the evidence or material in relation to Nurses B and L, in the same language that I have already quoted. They then moved to consider in appropriate detail the oral evidence which each of Nurse A and the appellant had given to them. In essence, she had maintained her account that on the night in question he had touched her in the various ways alleged. He maintained his complete denial that he had done anything at all. The panel continued:

"The panel considered that student Nurse A was a credible witness. Her evidence was broadly consistent and, although she did not have a detailed recollection of the broad layout of the ward, she was able to recall your behaviour towards her in the staff room in some detail. The panel found her to be an honest witness who was clear in admitting to the panel when she could not recall specific details."

17. With regard to the appellant, the panel continued:

"The panel also found you to be consistent in your denial of the allegations and noted that you have provided testimonials that speak highly of your professionalism."

18. The panel continued with an analysis of the evidence that had been given by student Nurse A. They said that they considered that her oral evidence gave a credible and broadly consistent account of the incident. They said that they "closely observed Student Nurse A's demeanour during her oral evidence and noted that when she was giving evidence regarding the incident she was visibly affected ... ". The panel said that they took into account that neither of the other nurses on duty [which of course included Nurse B] noticed anything untoward and that student Nurse A completed her shift without making any complaint.
19. The panel then reached the following conclusion, now at internal page 7 of the letter, bundle page 17:

"For these reasons, the panel concluded that, on the balance of probabilities, it is more likely than not that you did touch Student Nurse A's breasts and bottom and rubbed her back stating words to the effect of 'rub me too' and you tried to kiss her neck."

20. That is, of course, a clear and unequivocal finding which the panel were clearly entitled to reach on the basis of their assessment and analysis of the oral evidence of Student Nurse A and the appellant alone.
21. By her submissions today, Ms Grace Hansen, who has appeared with great cogency on behalf of the NMC, effectively invites me to treat the reasons and reasoning of the panel as though a hard line is drawn underneath the passage from which I have just quoted. There is, however, no such line, and the reasons continue as follows: "The panel then considered whether the hearsay evidence heard undermined its conclusion." Just pausing there, I find that sentence somewhat curious. It is difficult to see how the hearsay evidence, namely the material relating to Nurse B or Nurse L, could in some way "undermine" their conclusions based on hearing direct oral evidence from the only people who know what happened on the night in question, namely Student Nurse A and the appellant. At all events, at that point the panel stated that they were considering whether in some way their conclusion was "undermined". They continued:

"The hearsay evidence heard by the panel was that following Student Nurse A's complaint being made to the Trust, two further allegations were made during the investigatory interviews by two other nurses. The panel had sight of detailed investigatory interview notes documenting that [Nurse B] told [the investigating nurse] that you were a tactile person and that you had asked her for a hug and your 'hands would wander and want to go down to [her] bottom'. [Nurse B] also stated that when she said, 'Don't do that', you would say, 'I am only being friendly'. The panel attached some weight to this hearsay evidence. The panel also had sight of your disciplinary hearing outcome letter in which it is recorded that [Nurse L] provided a statement to the Trust's investigation stating that you asked her for a hug and then proceeded to squeeze her bottom. The panel attach less weight to this hearsay evidence.

The panel was of the view that the hearsay evidence supported rather than called into question its conclusion that on the balance of probabilities, it is more likely than not that you did touch Student Nurse A's breasts and bottom and rubbed her back stating words to the effect of 'rub me too' and you tried to kiss her neck."

22. It seems to me that it is inescapable from that passage, taken in conjunction also with the language of their ruling to admit this evidence at all ("The panel considered that the proposed evidence is relevant to these proceedings as it relates to alleged behaviour of a similar nature"), that the panel did take into account this material in relation to Nurses B and L in their overall consideration of what the facts were. They say in terms in relation to Nurse B that "the panel attached some weight to this hearsay evidence". They say in terms in relation to Nurse L that "the panel attached less weight to this hearsay evidence", but not that they attached no weight to the hearsay evidence. They express an overall view that "the panel was of the view that the hearsay evidence supported ... its conclusion ... ".
23. I quite accept the submission of Ms Hansen that the panel's findings could have stood alone on the basis only of the oral evidence of Nurse A and the appellant. I quite accept that if at an earlier point in their determination and reasons the panel had clearly and conscientiously said that, in reaching their decision as to guilt, they had left out of account altogether the material in relation to Nurse B and Nurse L, then their decision would be unimpeachable. But I cannot accept the metaphorical submission of Ms Hansen that there is large black line after the point at which the panel expressed their conclusions as between the appellant and Student Nurse A and before they went on to consider this material. Since they stated in terms that they attached weight to the hearsay evidence, it seems to me inescapable that it crept into their overall evaluation of the evidence and their reasoning process.
24. I am aware that on some very similar facts in a case called White v Nursing and Midwifery Council; Turner v Nursing and Midwifery Council [2014] EWHC 520 (Admin), Mitting J, in effect, took the view that the metaphorical hard line could be drawn. In that case, the panel had been shown some anonymous letter which they described as "adding weight to the evidence already adduced in support of these charges". But their reasoning was constructed in such a way that Mitting J felt able to say on the facts and in the circumstances of that case at paragraph 25 of his judgment:

"I am satisfied, on the basis of that necessarily detailed recitation of the committee's express findings, that it did not factor into its assessment of the critical evidence on which it based its findings, the anonymous statements which it should not have been directed that it could take into account. It is in hindsight fortunate that, despite that advice, the committee expressed its conclusion as it did. In my judgment it thereby made it clear beyond argument what it had relied on and that it did not include the inadmissible material."

25. On the facts and in the circumstances of that case, Mitting J considered at paragraph 26 that "both its conclusion and its reasoning on the critical [some word appears to be omitted] are unassailable". He therefore declined to quash their findings.
26. Whilst that case and this case may appear very similar, I can only say that I feel unable on the facts and in the circumstances of this case to regard the conclusions and the reasoning of the panel as "unassailable". The matter, in fact, goes further, because there are other difficulties with the material that was in fact placed before the panel pursuant to the application to admit further evidence. In relation to Nurse B, she appears never to have made any kind of formal written statement, and the only available material is the non-verbatim record of what she told the investigating nurse. As I have already read out, in the typed note of the investigatory meeting Nurse B apparently told the investigating officer that "his hands would wander and want to go down to your bottom". Since the hearing in front of the panel, there have been supplied to Mr Betts some handwritten notes of questions and answers between the investigating officer and Nurse B. According to those notes, Nurse B said: "Liked to hug/touch people. [The appellant] touched me on face and I said no. Happened approx 2 years [viz ago] ... ".
27. So, unsurprisingly, Mr Betts says today that there is a significant factual difference between touching someone "on face" and "hands would wander and want to go down to your bottom". Mr Betts submits that that just goes to show the dangerousness of admitting this sort of material without the person in question being available to give direct oral evidence, or at the very least having made a clear, signed written statement.
28. In relation to Nurse L, there seems to have been considerable confusion as to the manner in which she had communicated her account. The panel said in their reasons that they "had sight of your disciplinary outcome letter in which it is recorded that [Nurse L] provided a statement to the Trust's investigation ... ". That, indeed, is what appears in the formal disciplinary outcome letter, which says in the first bullet point on the second page, now bundle page 77: "There were also a statement received from L ... and the investigatory meeting with B ... ". It goes on to say that "during the interview B described her experiences with you, which included sexual harassment". But in relation to L it says, "L in her statement said that you had asked her for a hug and then proceeded to squeeze her bottom". To any reader of that letter, a clear distinction is being drawn between the position of L and the position of B. So far as B was concerned, she told the investigator things during "the investigatory meeting" and "during the interview". So far as L was concerned, there was "a statement received from" her. L in her statement said that the appellant had asked her for a hug and then proceeded to squeeze her bottom. Anyone reading that letter would clearly assume that there had been some form of formal written statement made by L and "received from" her. Patently the panel were under that impression, because they said in their reasons that the disciplinary outcome letter recorded "that [Nurse L] provided a statement ... ". On inquiry today, it appears that there never was any formal statement by Nurse L. As I understand it, although I have not seen the document, what happened was that at some point Nurse L gave some oral account by questions and answers to someone, maybe the investigating officer, and later signed some transcript or record of that account.
29. It seems to me, therefore, that there are obvious difficulties about the nature and quality of the material upon which the panel did place weight. In the case of Nurse B, it now emerges that there were some inconsistencies in her accounts, which whould obviously have been explored and developed if those inconsistencies had been known by Mr Betts during the hearing. In the case of Nurse L, the panel were under the misapprehension that there was at the least some formal written statement from her making the allegations as described.
30. As I have said, this is a deeply unfortunate matter. It was, in my view, a mistaken decision by the case presenter ever to seek to adduce any of this evidence. He had heard Student Nurse A give her oral evidence. He had heard the appellant give his oral evidence in chief. If that evidence struck him at all in the same way as we now know it struck the panel, he should have been content to rely on the quality of the oral evidence actually given to the panel. Instead, on the peripheral and unnecessary basis of "rebutting" one particular answer (the truth or falsity of which is in any event very debatable, since it turns on the meaning of the word "complaint"), he allowed a body of highly prejudicial material to go before the panel, which in the end got used, not merely by way of "rebuttal" but to reinforce their decision on the primary issue. For a senior nurse, even on a single occasion, to touch the breasts, back and bottom of a student nurse is, of course, a very serious matter. But if there is reliable evidence that he behaved in an inappropriate way, not just on the one occasion, but on several occasions with no less than three different nurses, then that is at an altogether even greater level of seriousness. I am afraid that evidence that was initially sought to be put in, in good faith, merely by way of "rebuttal" infected this case as grave evidence of what the panel described as "alleged behaviour of a similar nature".
31. I asked Ms Hansen why the allegations of Nurse B and/or Nurse L had not been made the subject of separate charges and properly laid before the panel with evidence from Nurse B and Nurse L. The reasons appear to relate to the unwillingness of those nurses to get involved in this matter and to give evidence. That being so, anything they had to say should have been kept right out of this hearing.
32. For those reasons, I conclude, with considerable regret but no doubt or hesitation in my mind, that this hearing became unfair in relation to charges 1 and 2 and that the findings of the panel are not reliable and safe, and I accordingly set the decision and findings on charges 1 and 2 aside. They must be reheard and redetermined by a differently constituted panel of the Conduct and Competence Committee.
33. On behalf of the appellant, Mr Betts submits that the unfairness or irregularity which has occurred in relation to charges 1 and 2, in effect, infects also the findings and decision in relation to charges 3 and 4. I cannot accept that submission. Charges 3 and 4 relate to a completely separate and discrete matter, albeit that as a matter of causation it all flows from the subject matter of charges 1 and 2. Charges 3 and 4 are not concerned in any way at all with sexually inappropriate behaviour or any of the nurses to whom I have referred. They refer instead to the completely separate matter of making a dishonest answer in an application form for subsequent employment. It is, in fact, completely undeniable that the appellant did complete the application form in the way I have described. That was not true. In my view, the panel were fully entitled to conclude, as they did, that when he filled in the form in the way that he did he acted dishonestly, and that conclusion in no way whatsoever depends upon, or is affected by, their conclusions in relation to charges 1 and 2. Accordingly, so far as I am concerned, the findings on charges 3 and 4 stand completely unaffected by my decision and order.
34. The last matter to which I must now refer is the status of the interim suspension. At the conclusion of the hearing last May, the panel imposed an interim suspension order which expires on 10 May 2016. Their reasons for doing so are recorded on internal page 15 of the transcript of day five, now bundle page 228, as follows:

"The panel was satisfied that an interim suspension order is necessary for the protection of the public and is otherwise in the public interest.

The panel had regard to the seriousness of the facts found proved and the reasons set out in reaching the decision to impose an interim order. The panel considered that it has found that you engaged in inappropriate conduct with a junior colleague and that you did not disclose your dismissal to a future employer. Further, the panel is of the view that you did not demonstrate insight during your oral evidence. In these circumstances the panel concluded that an interim order is necessary to protect the public."

35. It is, of course, very understandable that the panel expressed themselves in that somewhat compendious way, since they had found all four charges proved. It is not easy to sever out from that passage the extent to which the inappropriate sexual conduct influenced their decision to impose an interim suspension order and whether, if charges 3 and 4 had stood alone as proved, they would still have made an interim suspension order.
36. Under the relevant statutory provisions and regulations, the panel cannot make an interim suspension order for more than 18 months and it requires then to be renewed by this court. As I have said, the existing order will expire on 10 May 2016, exactly 2 months from now. It is unrealistic to imagine that the rehearing on charges 1 and 2 can have taken place and been concluded by that date. It seems to me, therefore, that I should today extend to May 2017 the existing interim suspension order; but I do so on the following basis and terms, which are an integral part of my order, and with which Ms Hansen has agreed on behalf of the NMC:

"On terms that a panel of the Conduct and Competence Committee will, not later than 6 May 2016, consider whether it is necessary and justifiable for the interim suspension order to remain in force whilst charges 1 and 2 await rehearing, but given that charges 3 and 4 stand."

37. So, to make my position absolutely clear, I do today extend by another year the interim suspension order so it can remain in place until the final conclusion of this whole matter if the Conduct and Competence Committee thinks it should do. On the other hand, it does seem to me that it is that specialist body rather than myself who should now consider whether the interim suspension order should remain in place, given that charges 1 and 2 require to be redetermined but, of course, charges 3 and 4 stand as proved. Clearly it is a serious matter that on an application form the nurse made a dishonest statement with regard to a current disciplinary matter; but standing alone that is less grave than the cumulative gravity of making a dishonest statement and also having behaved in a sexually inappropriate way towards a student nurse. It is entirely a matter for the discretion of the Conduct and Competence Committee, who must reconsider this matter at a short hearing in the relatively near future, whether the dishonesty alone requires and justifies the continuation of the interim suspension order.
38. For those reasons, this appeal will be allowed to the extent indicated.

Are there any matters with which I have failed to deal? Mr Betts?

MR BETTS: No, thank you, my Lord.

MR JUSTICE HOLMAN: Any matters, Ms Hansen?

MS HANSEN: Only two brief matters of clarification, my Lord. In relation to the interim order, you stated the panel cannot make a suspension order for more than a year. Actually, their powers are for 18 months, in this case they made it for a year. [correction now made] But it does not make any difference to your Lordship's judgment. The only other matter was, of course, you have described the handwritten notes you received today for the first time as from the conversation that Nurse B had with the investigatory nurse. They are actually notes from the disciplinary hearing rather than notes of the conversation. Again, I do not think it makes a difference.

MR JUSTICE HOLMAN: You mean they are notes of the identical hearing that we also have a type-up of?

MS HANSEN: No. The notes we have a type-up of --

MR JUSTICE HOLMAN: Are the investigatory meeting.

MS HANSEN: Are the investigatory meeting.

MR JUSTICE HOLMAN: I see.

MS HANSEN: And the other notes --

MR JUSTICE HOLMAN: It does not matter. They said one thing on one occasion and another thing on another.