England and Wales High Court (Administrative Court) Decisions

IN THE ADMINISTRATIVE COURT AT LEEDS

		Courtroom No. 16 Leeds Combined Court Centre The Courthouse 1 Oxford Row Leeds West Yorkshire LS1 3BG 10.13am – 10.55am
		22nd February 2018

HHJ DAVIS-WHITE QC:

1. This is an appeal brought, pursuant to Article 38(1) of the Nursing and Midwifery Order 2001, (the "2001 Order") by Mr Paul Keasey. The appeal is against the decision of the Conduct and Competence Committee, acting by a panel (the "Panel") of the Nursery and Midwifery Council ("NMC") dated 11 July 2017. The decision in question was a determination that the applicant's fitness to practise as a nurse was impaired by reason of his misconduct and that the appropriate sanction was to suspend his registration with the NMC for a period of 12 months. An interim suspension was also imposed.
2. The hearing lasted four days between 4 and 7 July 2017. Both parties were represented by counsel. Mr Keasey was called to give evidence and was cross-examined as was the main complainant, described in the proceedings as "Colleague A".
3. As explained in the Panel decision, there were essentially three charges before the Panel arising out of events which were alleged to have occurred at a time when Mr Keasey was employed as a Registered Mental Health Nurse by Black Country Partnership NHS Foundation Trust. The background facts are set out in the Panel's decision under the heading 'Background'.
4. On the nightshift of 25 and 26 July 2015, in the Extra Care Area Suite at Penn Hospital, Mr Keasey was the nurse in charge. He was working on the same shift as two male healthcare support workers ("HCSWs"). Patient A, a female patient, was the sole patient in Mr Keasey's care. In the case of a female patient, a female staff worker is required to be present. Accordingly, at approximately 10.20pm on 25 July 2015, Colleague A, a female healthcare support worker who had been working on a different ward at Hallam Street Hospital was transferred to the Extra Care Area Suite. The three members of staff on duty in the Extra Care Area Suite thereafter comprised Mr Keasey, who is a registered nurse, as well as the two HCWs, a male described in the proceedings as "Mr 2" or "Archie" and Colleague A.
5. The allegations were in substance twofold. First, it was alleged that Mr Keasey took his break at about 5am on 26 July 2015, and that he told Colleague A to take her break at the same time, meaning that two staff members were simultaneously on break. The effect was that only one staff member was observing Patient A. This was said to be in breach of specific guidance requiring that two staff members observe Patient A while the other one took their break.
6. The other allegation was that Mr Keasey engaged in sexually motivated behaviour towards Colleague A during the break. It was alleged that Archie left the lounge to check Patient A's notes in the office and that Mr Keasey was left alone with Colleague A. The allegation was that he lay down on one of the sofas in the rest area alongside her and subsequently touched her breast. It was also alleged that he whispered into her ear at that time, 'I suppose I should have asked you first if you have a boyfriend or girlfriend', or words to that effect. Colleague A removed herself from the sofa. She reported the alleged incident to another registered nurse described in the proceedings as "Ms 3" in Dale Ward at Penn Hospital. Ms 3 reported the incident to Ms 1, the senior duty nurse who told Mr Keasey to finish his shift early and leave the hospital, which he did. Colleague A continued to work until the end of her shift. She confirmed the complaint by email that evening to staff within the hospital. She reported the matter to the police a few days after the alleged incident and gave a statement to them on, I think, 5 August 2015.
7. The charges were three in number, the first being broken down into three parts. They were (as amended) as follows:

'That you whilst employed by Black Country Partnership NHS Foundation Trust as band five registered nurse;

1) On 25 and 26 July 2015, (a) lay on the sofa next to Colleague A (b) touched Colleague A's breast (c) said to Colleague A 'I suppose I should have asked you first if you have a boyfriend or girlfriend' or words to that effect.

2) Your actions as described in charge one above was sexually motivated.

3) On 25 and 26 July 2015, did not ensure that Patient A was on a level of observation as consistent with the guidance note

and in light of the above your fitness to practise is impaired by reason of your misconduct'.

Again, the numbering has been added by me in this judgment.

8. The Committee found that the factual matters of the subject of charges one and two were proved. The third charge was found not proved and I need to say no more about it
9. Having found the charges proved, the Committee went onto consider first whether the facts found amounted to misconduct and secondly, if so that Mr Keasey's fitness to practise was currently impaired. It decided both issues against Mr Keasey. It then moved onto consider sanction and imposed a suspension order for a period of 12 months. The committee also imposed an interim suspension order. That was for 18 months to allow for the possibility of an appeal to be made and determined, but if no appeal was made the interim order was to be replaced by the suspension order 28 days after Mr Keasey was sent the decision in writing.
10. Before me Mr Golog of counsel appeared for Mr Keasey. He was fairly recently instructed. He is not responsible for the skeleton argument in the appeal, which was settled by different counsel, also not appearing below. Mr Golog took every point that could be taken on behalf of his client. Although he did not persist in certain points, I am satisfied that the position that he took in that respect reflected the outcome that would have been inevitable. Mr Cassels appeared for NMC. He too did not appear below. I am grateful to both counsel for their assistance in this case.

The appeal

11. The appeal included an appeal against the making of the interim suspension order but that matter has been separately dealt with and I need to say no more about it.
12. The remaining appeal as mounted was both against the substantive findings of fact of the Committee on count one and against the sanction imposed.
13. As regards sanction, in opening Mr Golog made clear that the appeal against sanctions was not persisted in. This is one example of an area where I consider that Mr Golog correctly bowed to the inevitable.
14. As regards count two, it was accepted below and, as I understood it, before me, that if count one was established then the Panel's decision as reached by it on count 2 followed.
15. I am therefore left to deal with the appeal as to the findings the Panel made in relation to count one. If they survive the appeal there is no challenge to the Panel's determination that such matters amount to misconduct and that they impair Mr Keasey's fitness to practise.
16. As regards count 1(a), the Panel decided that even on Mr Keasey's account of the episode , he admitted lying next to Colleague 1 on the sofa and that that count was established. Mr Golog confirmed before me that Mr Keasey did not challenge that finding.
17. As regards to the remaining findings in relation to count 1, the grounds of challenge are in effect first that the Panel was not correctly directed, and did not correctly direct itself regarding the burden of proof. Secondly, it is submitted that the decision reached by the Panel was essentially against the evidence and not open to the Panel to reach and/or that they approached their task in an improper manner in various respects.
18. At this point I turn to the law.

The law - appeals from the Panel

19. Article 29(8) of the 2001 Order provides for the right of appeal which is being exercised in this case. Under Article 38(3) of the 2001 Order, this court may (a) dismiss the appeal, (b) allow the appeal and quash the decision appealed against, (c) substitute for the decision appealed against any other decision the Panel could have made, or (d) remit the case to the committee to be disposed of in accordance with the directions of the court and may make such order as to costs as it makes fit.
20. Under Civil Procedure Rule 52.21.3, the court sitting on the appeal will usually act by way of review rather than rehearing and will only allow the appeal where the decision of, in this case, the Panel was (a) wrong or (b) unjust because of seriousness procedural or other irregularity.
21. The structure is therefore very similar to that applying to appeals from disciplinary decisions of the General Medical Council. That is significant because there are many cases dealing with the courts' approach to such appeals. It was common ground that exactly the same principles apply to disciplinary appeals from the relevant committee of the NMC.
22. I was referred to a number of cases but the general principles were agreed. In Cheatle v General Medical Council [2009] EWHC 645, Mr Justice Cranston conveniently summarised the principles derived from General Medical Council v Meadow [2006] EWCA Civ 1390, and Raschid v General Medical Council [2007] EWCA Civ 46. More recently a convenient summary has been set out by Mr Justice Hickinbottom in Siddiqui v General Medical Council [2015] EWHC 1996 (Admin). At paragraphs 28 and 30 of the judgment dealing with the two limbs of Civil Procedure Rule 52.21.3 he said as follows that the following propositions can be derived:

'28. In terms of the second limb (i.e. whether the decision below is "wrong"), the role of this court goes beyond a simple review of the decision on public law grounds – it is possible to challenge factual findings as well as the law – but neither is it a full re-hearing. Because of the important public interest in the finality in litigation, the starting point is that the decision below is correct unless and until the contrary is shown. Laws LJ put it thus in Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56 at [44]:

"The burden so assumed [by the appellant] is not the burden of proof normally carried by a claimant in first instance proceedings where there are factual disputes. As appellant, if he is to succeed, he must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one. The divide between these positions is not caught by the difference between a perceived error and a disagreement. In either case the appeal court disagrees with the court below, and, indeed, may express itself in such terms. The true distinction is between the case where an appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category." (emphasis in the original).

To that extent, in respect of factual issues, the court must engage with the merits.

29. However, in doing so, the court is required to give due deference to the Panel below, because:

i) a Fitness to Practise Panel of the GMC has been assigned, ultimately by the elected legislature through the statutory scheme of the 1983 Act, the task of determining the relevant issues;

ii) it is a specialist Panel, selected for its experience, expertise and training in the task; and

iii) it has the advantage of having heard oral evidence.

30. Of course, the extent of the deference to be given will depend upon the nature of the issue involved, and the circumstances of the case. The greater the advantage of the Panel below, the more reluctant this court should be to interfere. Therefore:

i) If the issue is essentially one of statutory interpretation, the deference due may be limited.

ii) If it is one of disputed primary fact which is dependent upon the assessment of oral testimony, the deference will be great: this appeal court will be slow to impose its own view, and will only do so if the Panel below was plainly wrong.

iii) CPR rule 52.11 expressly enables an appeal court to draw inferences it considers justified on the evidence. Where the court is asked to draw an inference, or question any secondary finding of fact, it will give significant deference to the decision of the Panel below, and will only find it to be wrong if there are objective grounds for that conclusion.

iv) Where the issue is essentially one of discretion, the court will only interfere if the Panel was plainly wrong. Case management decisions falls into this category; as does the sanction imposed. Similarly, where any open-textured evaluative judgment has to be made on the primary facts, involving a number of different factors that have to be weighed together. As Laws LJ emphasised in Subesh (at [49]), there are no rigid categories here, but a spectrum of cases, the approach being "a general one, having neither need nor scope for sophisticated refinement"'.

In the case before me as in the Siddiqui case, many of the appellant's complaints concern how in its factual determination the Panel dealt with conflicts of evidence.

23. As regards findings of fact the matter was put by Cranston J during the Cheatle case as follows:

'15. As to findings of fact, however, I cannot see any difference from the court's role in this as compared with other appellate contexts. As with any appellate body there will be reluctance to characterise findings of facts as wrong. That follows because findings of fact may turn on the credibility or reliability of a witness, an assessment of which may be derived from his or her demeanour and from the subtleties of expression which are only evident to someone at the hearing'.

24. I was referred to a number of other formulations in cases. I have found the formulation in Dr Jenyo v General Medical Council [2016] EWHC 1708 (Admin) to be helpful. There, Mrs Justice Andrews said:

'7. An appeal of this nature will be allowed if, and only if, the court reaches the conclusion that the decision was wrong or unjust because of a serious procedural or other irregularity: CPR r. 52.11. The governing legal principles were helpfully set out by Hickinbottom J in Siddiqui v GMC [2015] EWHC 1996 (Admin) at [25]-[30]. There was no dispute about them between Counsel, and it is unnecessary to repeat them here. I have borne them well in mind.

8. Suffice it to say that in a case such as the present, where the key issue is one of disputed fact which is dependent upon the assessment of oral testimony, considerable deference must be afforded to the decision of the Panel, which had the advantage of seeing and hearing the witnesses, including the Appellant himself. The court will be slow to interfere, and will only do so if the decision is plainly wrong. The Court of Appeal has described findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, as "virtually unassailable": Southall v GMC [2010] EWCA Civ 407 at [47] per Leveson LJ (with whom Waller and Dyson LJJ agreed.) If the court is asked to draw an inference, or question any secondary finding of fact made by a Panel, it will still give significant deference to the Panel's decision, and will only find it to be wrong if there are objective grounds for that conclusion.

9. The court will not conclude that a finding of fact was against the evidence unless it exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible. It is insufficient that the court might have drawn a different conclusion. As Laws LJ put it in Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56 at [44]:

"The true distinction is between the case where an appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category." (emphasis in the original)"'.

25. Finally, I should mention the position regarding reasons. Again, the summary of the position is conveniently taken from the Cheatle case when Mr Justice Cranston said as follows:

'Reasons of a Fitness to Practise Panel

29. De Smith's Judicial Review, 6th ed, 2007, reads:

"It remains difficult to state precisely the standard of reasoning the court will demand. Much depends upon the particular circumstances and the statutory context in which the duty to give reasons arises. It is clear that the reasons given must be intelligible and must adequately meet the substance of the arguments advanced. … The reasons must generally state the decision-maker's material findings of fact (and, if the facts were disputed at the hearing, their evidential support), and meet the substance of the principal arguments that the decision-maker was required to consider. … In short, the reasons must show that the decision-maker successfully came to grips with the main contentions advanced by the parties, and must tell the parties in broad terms why they lost or, the case may be, won (para 7-104; footnotes excluded)."

30. In Gupta v General Medical Council [2001] UKPC 61; 1WLR 1691, Lord Rodger said that generally speaking reasons on factual matters were unnecessary but "there may indeed be cases where the principle of fairness may require the committee to give reasons for their decision even on matters of fact" (para 14). Echoing this passage Wall LJ said in Phipps v General Medical Council [2006] EWCA Civ 397; [2006] Lloyd's Rep Med 345

"85 … [E]very Tribunal (including the PCC of the GMC) needs to ask itself the elementary questions: is what we have decided clear? Have we explained our decision and how we have reached it in such a way that the parties before us can understand clearly why they have won or why they have lost?

86. If in asking itself those questions the PCC comes to the conclusion that in answering them it needs to explain the reasons for a particular finding or findings of fact that, in my judgment, is what it should do. Very grave outcomes are at stake. Respondents to proceedings before the PCC of the GMC are liable to be found guilty of serious professional misconduct and struck of the Register. They are entitled to know in clear terms why such findings have been made."

Sir Mark Potter P agreed. There was no general duty to give reasons or decisions on matters of fact, in particular when the essential issue was one of credibility on reliability of evidence in the case, but there were cases when fairness demanded it. Such cases were "those where, without such reasons, it will not be clear to the losing party why he has lost: at para [106]. Sir Mark Potter P added that it was not a necessary ingredient of the requisite clarity required that the reasons should be expressly stated when they were otherwise obvious.

31. Gupta and Phipps were both decided under the predecessor Rules. Rule 17 of the current rules imposes a statutory duty on Panels to give reasons for decisions on impairment and sanction, but not for findings of fact. However, there is no reason to conclude that the approach in Gupta and Phipps is modified by the Rules. The duty to give reasons, albeit in exceptional cases, is of such importance that if the common law is to be modified in this regard by a rule it must be done much more clearly'.

26. More recently as regards duty to provide reasons there are the principles set out in Flannery & Anor v Halifax Estate Agencies Ltd [2000] I WLR 377, and English v Emery Reimbold & Strick Ltd. (Practise Note) [2002] EWCA Civ 605; [2002] 1 WLR 2409.
27. I would suggest that the guidance given in relation to tribunals in H v East Sussex County Council & Ors [2009] EWCA Civ 249, should be borne in mind as being applicable. There Waller LJ said the following:

'16. The requirement to give reasons is concerned with fairness and as far as guiding principles are concerned I agree with what Wall LJ said in W v Leeds City Council and SENDIST [2006] ELR 617. After referring to four first instance decisions specifically relating to Special Educational Needs Tribunals and the giving of reasons, including Grigson J's decision in R(M) v Brighton and Hove City, he said at paragraph 53 to 54 as follows:-

"53. I do not think it necessary for this court to add to the already substantial jurisprudence on this topic. Speaking for myself, I have always regarded the judgment of Sir Thomas Bingham MR (as he then was) in this court in Meek v Birmingham City Council [1987] IRLR 250 (even though it substantially antedates the incorporation into English Law of ECHR) as the definitive exposition of the attitude superior courts should adopt to the reasons given by Tribunals. Whilst, of course, some aspects of the reasoning processes of different specialist tribunals are unique to the particular speciality which is engaged, I see no reason, in this context, to distinguish between Employment Tribunals and what are now SENDISTs. Sir Thomas said:

"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises . . ." '

Of course the nature of the tribunal the issue that it is deciding where reasons are said to be required and the nature of its overall function, in this case the serious question of disciplining professionals, are to added to the equation when the final general principles in the particular appeal in question.

28. Although I did not understand the general principles I have set out above to be disputed, I have set them out in light of Mr Golog's opening explanation that in layman's terms the decision of the Panel in this case 'left a nasty taste in the mouth'. That of course is not the test for a successful appeal and it is not my job as an appeal court to retry the case and to allow the appeal if I think I might have come to a different view to the Panel. I have to be satisfied that the Panel was wrong when it made the findings of fact that it did.

Contrary to the submission of Mr Golog at one point, I do not have to be satisfied that the Panel was correct. I can only interfere if its decision exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible and it is insufficient that I might have called a different conclusion myself.

The evidence before the tribunal and its findings

29. At the end of the day the attack on the Panel's findings is on an overall basis one that the factual findings reached by the tribunal were not open to it and or that it failed to direct itself properly regarding its standard of proof.
30. As regards to the evidence before the tribunal four main points are made by Mr Golog.

1) First, it is said that there are inconsistencies in Complainant A's evidence and the version of events which she had put forward at different times.

2) Secondly, it is said that these inconsistencies were dealt with by the Panel differently to and inconsistently with the way inconsistencies in Mr Keasey's evidence were dealt with.

3) Thirdly, it is said that the Panel wrongly relied on certain evidence of Mr Keasey and

4) finally, it is said that the Panel did not properly direct itself regarding the burden of proof given the evidence before it.

31. The Panel's decision as to the facts was recognised by counsel at the time as being one where it, the Panel, had to decide between the credibility of Complainant A and Mr Keasey given their different versions of what had happened. No third party or other evidence was available on that issue.
32. The Tribunal recognised this and came to the conclusion that it preferred the evidence of Colleague A. In doing so it recognised that there were inconsistencies in the evidence of both Mr Keasey and Colleague A. I shall return to some of the detail about this in a moment but for present purposes it suffices to note that as regards its consideration of charge 1B, the Panel started by saying:

'This charge is found proved.

In reaching this decision the Panel was mindful that there was no independent evidence to corroborate either your or Colleague's A accounts of the alleged sexual incident. The Panel bore in mind that both you and Colleague A provided differing accounts of the alleged incident'.

33. Having identified the evidence given to the Panel by Colleague A, the Panel went onto outline the evidence given by Mr Keasey and identified a number of inconsistencies as well saying that it had found certain elements of his evidence confusing. The Panel addressed certain inconsistencies in Colleague's A evidence, which I shall come onto but concluded:

'...the Panel did not find that [Colleague A's] inconsistencies undermined her general credibility. The Panel found Colleague A to be clear and consistent in her evidence that you had touched her breast and considered that this was the most important aspect of these charges. She has not wavered in her account of this allegation throughout the hearing and her subsequent actions support her account as alleged.

Having considered all of the evidence, the Panel determined to attach less weight to Colleague A's inconsistencies and bore in mind that it is accepted that she reported the incident immediately afterwards. The Panel found that Colleague A's evidence was robust under cross-examination and that she did not seek to exaggerate the seriousness of the incident'.

34. The Panel in finding charge 1C proved relied on the reasoning set out in considering charge 1B.
35. As far as alleged inconsistencies in Colleague A's evidence is concerned, I was referred to the following evidence before the Committee.
36. First, it was an agreed fact that Colleague A reported the alleged incident to another nurse Emma Thompson who in turn reported it to one Edinah Mitchell on 26 July 2015, the report being made between 5am and 6.23am. Ms Thompson was not called to give evidence but there was a hearsay statement from her in evidence. By email sent on 30 September 2015, some two months after the event, Miss Thompson told a service manager, as I understand it investigating the matter, so far as relevant as follows:

'My recollection from the night was [Colleague A] came to the ward, it was a few hours before the end of the night shift…. She came and explained to me the incident and that she did not want to return to the ECA. I told her I would call the DSN and ask her attend to the ward to speak with [her] to see what could be done. I called and the DSN attended and spoke to [Colleague A] in private in the doctor's room.

Is this okay? I cannot remember much more'.

37. A reply email thanks her for her email but said, 'However, we would need to know the incident details she explained to you'.
38. By further email, Miss Thompson said as follows:

'The Incident details she explained was that he had been inappropriate with her during the shift, asking if she had a boyfriend and I think if she had Facebook? (My memory is poor), and during her break while the other member of staff was busy in the office doing paperwork he pressed himself close up against her. She said this had made her feel really uncomfortable and that she could no longer stay in the ECA and complete her shift. That's why I called the DSN to see if anything could be organised, so she did not have to return'.

39. Colleague A was cross-examined about this. It was put to her she did not tell Ms Thompson that Mr Keasey touched her breast. Her reply was that she was pretty sure that she did tell Ms Thompson about the touching and that she did not think she would have forgotten that detail when she spoke to Ms Thompson but that obviously Ms Thompson was not the senior nurse and it was to Miss Mitchell she had told what happened about that.
40. It was said to the Panel, and submitted to me, that the emails from Ms Thompson raised serious issues about the credibility of Colleague A's account given that there is no mention of the touching of her breast. The Panel was clearly well aware of this point as it was one of the two inconsistencies that Counsel for Mr Keasey relied on in closing submissions.
41. In my judgement it is clear that when Ms Thompson she wrote her emails she accepted that she did not have a good memory. I reject the submission of Mr Golog that by her email she was saying that her memory was only bad on the limited questions of whether there had been discussion of other boyfriends and/or Facebook. Given the cross-examination and the terms of the emails, it seems to me that those emails were not such as to prevent the Panel reaching the conclusion that it did as regards charges 1B and 1C. In that respect I shall make clear that in reaching my conclusion I have considered not only the specific evidence regarding the emails from Ms Thompson but all the other evidence before me and the reasoning of the Panel.
42. I should also add that I do not consider there was a requirement on the Panel to go further than it did and in its reasoning specifically address the question of the emails in more detail.
43. Also, on 26 July 2015, Colleague A sent an email with the subject matter of 'personal statement' making a formal complaint about Mr Keasey to, as I understand it, other personnel. The email said in part:

'I must have dozed off and was woken by PK touching my breast and breathing down the back of my neck asking if I had a boyfriend/ girlfriend. I then told him I had to go to the toilet and went to alert a member of staff on Dale ward where I am based. She then alerted duty senior nurse…'.

44. It is said by Mr Golog that this email is inconsistent with later evidence given to the Panel because it refers to Colleague A having dozed off and being awoken by Mr Keasey touching her breast. Colleague A's evidence before the committee was that at the time of the alleged touching she was falling asleep, so that she was aware that Mr Keasey was moving around on the sofa but she was not fully awake to understand. She thought he might be turning over. he was not sure what his intentions were. She said that it was not a case of him waking her up by touching her breast.. When asked if she was already awake she said she was not in a deep sleep but that she was aware of what was going on.

This email was not one upon which Colleague A was specifically cross-examined nor was it referred to in closing submissions of counsel for Mr Keasey. She was asked a question about it from the chairman of the Panel. She confirmed that the email had been compiled by her and Miss Mitchell and that the words about being woken were hers. The Panel therefore clearly had the email in mind.

45. However, the general point about her state of sleep or otherwise was put to her in cross-examination in relation to an answer given to the interviewer in the disciplinary investigation that followed her email where she had said Mr Keasey had squeezed her breast and that that is what woke her up. Her answer was that when she said "woke up" she did not mean from a deep sleep but that she was just dozing off. It jolted her. She was not in deep sleep. In answer to the question, "did he wake you up or not"? She said she was not in a deep sleep. She was falling asleep. It startled her awake. She was not fully asleep. She was falling asleep.
46. As regards Colleague A's evidence about sleeping, the Panel said as follows:

'The Panel also considered Colleague A's inconsistent evidence to whether or not she was asleep when you allegedly touched her breast. The Panel did not find that her inconsistencies undermined her general credibility"

And the passage that I have set out in paragraph 33 above then continued.

47. In light of the evidence it seems to me that it was open to the Panel to reach the determinations of fact that it did and that this email is not such as to make their findings on the facts wrong. Again, in reaching that conclusion I take into account the overall evidence and reasoning of the committee as well as that which I have outlined above specifically relating to the issue of whether Colleague A was awake or not.
48. In August 2015, Colleague A provided a witness statement pursuant to the Criminal Justice Act 1967 Section 9 to the police. As is common the statement was taken orally by the police who then prepared the statement and sent it to the witness for approval. In that statement, it is said that Mr Keasey put his right hand down the top of Colleague A and held her breast over her bra. In oral evidence to the Panel, Colleague A was clear that this was wrong and the touching had been over her top and not underneath it. She was cross-examined about this. Her answer was that she did not remember saying that Mr Keasey had touched her under her top and that she should have read the statement properly before signing it.
49. This potential inconsistency, as to whether Mr Keasey touched her under her top or over her top was the second major inconsistency in her evidence relied upon by counsel of Mr Keasey in closing as a reason for doubting her credibility. In its reasoning the Panel set out the inconsistency and said:

'She told the Panel that she had not properly proof-read the witness statement given to the police. The Panel found her responses in that regard to be satisfactory."

This is a prime example of a finding where an appeal court will give deference to a fact-finding tribunal who heard the witness and was able to assess her credibility.

50. Colleague A was also interviewed by a panel conducting a fact-finding investigation on 18 August 2016. A copy of the notes of that meeting were subsequently sent to Colleague A and she signed them. The date of signature by her is unclear but this matter was not explored in oral evidence. Part of question one asked her to run through the events of the night shift of 25 and 26 July 2015. Having said that Mr Keasey approached her to ask whether they could top and tail on the sofa and that she said that they could, she went onto say:

'I closed my eyes. I wasn't properly asleep but I heard Archie saying he was going to have a look at the patient's notes. Mr Keasey then got off the sofa and came behind me into a spooning like position and whispered I suppose I should have asked you first if you had a boyfriend or a girlfriend. I then got up and said that I need to go to the toilet'.

A manuscript addition to the typed statement was then made by Colleague A as follows, 'When Mr Keasey came behind me he reached over with his right arm and squeezed my breast'. In answer to question 60, "did Mr Keasey actually touch your breast"? The answer given is, 'Yes. He squeezed my breast and that's what woke me up'.

51. It does not seem to me that the omission of his squeezing of the breast in the typed version of the interview is significant. The matter was mentioned in response to question 60 and a manuscript amendment was made by Colleague A when she approved the typed version of the note. No cross-examination was conducted in relation to this specific change.
52. The more relevant point is that in oral evidence she said that Mr Keasey cupped her breast rather than squeezed it. The matter does not seem to have been raised in cross-examination but in examination in chief the point was put to Colleague A who confirmed that, 'it was like cupped as being the only way I can describe it. It was not an accidental brush but he did not squeeze it. He held it'. Again, it does not seem to me that any inconsistency here was such as to prevent the Panel properly reaching the conclusions of fact that it did. As before and throughout, I take into account not just the specific evidence about 'touching', 'cupping', 'squeezing' but the overall evidence in the case and reasoning of the Panel.
53. Many of the points raised in the skeleton argument about the above inconsistencies are in effect seeking to reargue submissions made before the Panel. In my judgement nothing which is said about them is such as to demonstrate that the Panel was wrong in the findings of fact that it made. At the end of the day, the evidence does not begin to show that the findings of fact are wrong or put in another way that they "exceed the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible".
54. As regards the evidence of Mr Keasey, the first point that I deal with is the suggestion that the Panel referred to the issue that Mr Keasey and Colleague A took their break at the same time and that they relied on the same as evidence of a degree of pre-planning on behalf of Mr Keasey. It is said that this approach by the Panel was wrong.
55. The answer to this submission is that the Panel did not rely on the evidence as supporting a degree of pre-planning. That matter was relevant to charge 3, which was found not to be proved. The recital of the relevant fact was in the Section of the decision dealing with the background facts. There is no express statement or finding of pre-planning and indeed it is submitted by Mr Golog that the same is to be implied. However, that submission flies in the face of the fact that the Panel not only did not identify this as an exacerbating factor when determining sanction but then when considering its decision on impairment, it described the findings of sexual misbehaviour as being 'an error in judgement' and that the incident was 'momentary and isolated'.
56. The second point taken is that the Panel was critical of the inconsistencies of Mr Keasey over time on the question of whether or not he was asleep. I will not recite all the evidence. Suffice it is say part of his explanation for the inconsistency was that one of the statements he made on the issue was made under duress. In my judgement this is another area where the appeal court will bow to the fact that Panel saw and heard oral evidence from the witnesses in question. The fact that on two different issues, first whether Colleague A was asleep and secondly whether Mr Keasey was asleep, it came to different conclusions as to the credibility of Colleague A on the first issue and the credibility of Mr Keasey on the second issue does not in my assessment show a difference of approach to the two witnesses. It simply reflects the Panel's overall assessment of the evidence on the two different issues and the credibility of the two witnesses.
57. The third point taken is that the Panel relied on the fact that when Mr Keasey was asked to leave the premises, he did not question the decision of the senior nurse giving the instruction. It is said before me that there was evidence that he was told that he should ask another person about it. Either he had questioned the decision and received the reply that he should ask the other or there was no need for him to question the relevant person over the decision and his failure to do so carried no weight, However, it seems to me again that this is a finding that the Panel having heard the evidence of the witness was entitled to reach and to take into account and that it cannot be said to be wrong.
58. In the skeleton argument it was submitted that the Panel had failed to take into account and to give appropriate weight to the appellant's good character. However, the Panel in express terms said that it had taken account of and given appropriate weight to Mr Keasey's good character and that it had carefully considered the character references submitted on his behalf. Some or all of these character references had been submitted on a permitted re-opening of the case, after evidence had closed and advice had been given by the assessor. Mr Golog did not pursue this point.
59. I turn last to the standard of proof. The Panel was in terms directed upon the burden of standard proof by the legal assessor. As regards the standard of proof he advised that the facts had to be proved on the balance of probabilities, that is when something is more likely than not to have occurred. Indeed, in it is decision the Panel recited that the burden of proof rested on the NMC and that the standard of proof was a civil standard, namely the balance of probabilities. 'This means that the facts will be proved if the Panel was satisfied that it was more likely than not that the incident occurred as alleged'.
60. It is accepted that the correct standard of proof was applied. However, two criticisms are made. First, it is said that the Panel should have directed themselves that given the seriousness of the allegations there had to be cogent evidence of the alleged sexual misbehaviour. I was referred to a number of cases where on the particular facts such a direction was considered to be necessary. As is clear from in Re B (Children) [2008] UK HL 35, there is no logical or necessary correlation between the seriousness of an allegation and the likelihood of it having taken place; see e.g., speech of Lady Hale at paragraph 72).
61. In this case the Panel was well aware of the seriousness of the allegations being made. They had to assess the credibility of the two witnesses, as they identified. Neither counsel nor legal advisors suggested that the direction about cogency was necessary, even in circumstances where counsel of Mr Keasey reopened the case after the legal advice had been given the day before. Mr Keasey had accepted that in lapse of judgement he had lain on the sofa next to the Colleague A. I am satisfied that it was unnecessary for the Panel to direct itself that it had to be satisfied that there was cogent evidence before it could be satisfied that the standard of proof was met.
62. Finally, it was submitted that the Panel should have considered, and failed to do so, whether there might have been an innocent explanation for the touching and that it was not deliberate in that it might have occurred while Mr Keasey was asleep. In my judgement the short answer to this submission is that Mr Keasey's case was that he was awake, or at least sufficiently awake, at the relevant time to know what he was doing. In those circumstances, it was, in my judgement, not necessary for the Panel to consider whether he might have accidentally and unconsciously touched Colleague A in his sleep.
63. It follows that the appeal is dismissed.
End of Judgment Transcript from a recording by Ubiqus 291-299 Borough High Street, London SE1 1JG Tel: 020 7269 0370 legal@ubiqus.com